CDPP v Agrawal [2024] VCC 529

1. You were born in Mussoorie, India in November 1980. You lived with your parents, older brother, grandmother and an aunt. Your father ran a restaurant and a small business. Your mother was a housewife. You enjoyed a happy, loving childhood with strong relationships with your immediate and extended family.
2. You completed your primary and secondary education in Mussoorie. At the age of 18, you moved to New Delhi, commencing a Bachelor of Arts degree at Delhi University. Having completed your degree at the age of 23, you moved to Australia and settled in Melbourne in 2004. At the time of moving here, your older brother was already settled in Sydney. In Melbourne, you undertook and completed a Graduate Diploma in International Business and a Master of Commerce at Deakin University.
3. Your parents also moved permanently to Australia in 2011 and live in Sydney. You became an Australian citizen in 2009.
4. You have enjoyed a successful employment history. From 2006 until 2013, you were employed as a team leader at a superannuation company. As a team leader, you managed a customer service and sales team comprising 24 staff members. You also mentored upcoming team leaders. For a period of nine years, commencing in 2014, you worked as a data analyst at a bank. As a result of being charged for this offending, your employment was terminated in July 2023. You have not worked since and have been living utilising your savings.
5. You met your wife in 2013. You got married in India in November 2017. You were able to secure a period of leave from work when you lived with your wife in India. Both of you returned to Melbourne in September 2019.
6. I was told that you and your wife wanted to start a family but experienced fertility issues for some four years. In April 2022, your wife suffered a miscarriage. The struggles with fertility and the miscarriage placed a significant strain on your relationship.
7. You felt isolated. You were struggling with insomnia and would stay up spending your time on the Internet. This involved utilising chat rooms. The chats evolved into engaging in conversations with a sexual connotation, including the offending conduct now before this court.
8. Your counsel made it plain that she relied upon this to provide context. It plainly does not in any way provide any excuse for your offending conduct.
9. Since the offending, in January this year, you wife gave birth to your first child. Your daughter is now some three months old. You provide considerable support to your wife and you are described as a loving father.

Gravity of the offending and sentencing purposes

1. Your offending was directed towards someone you believed to be a single mother of a six year old daughter. Your communication abused the trust a child had in her mother. I am required to take into account as an aggravating factor, the fact that your intended victim was under the age of ten.[2] The communication commenced on 9 March 2023 and continued until the day of the meeting, 13 March 2023. Your conduct was calculated, it was persistent and manipulative. As conceded by your counsel, messages sent by you indicating your intention of always wanting to engage in sexual activity with children but that it was not easy finding a young girl, demonstrate that you were persistent and insistent in your intention to engage in sexual activity with Sienna's child and shows an attempt by you in manipulating Sienna by encouraging her and trying to ensure she would follow through with the plan.[3] I also find that the fact that you did not hide your identity is indicative of your intention to meet with the mother and child.
2. The communication involved abhorrent sexually explicit matters relating to what you would do to a six year old girl. This explicit communication occurred over two days. It involved making firm plans to meet up with Sienna and her daughter. You were arrested at the arranged meeting point which also demonstrates your intention to follow through with the arranged conduct. I bear in mind that I am sentencing you for an offence of grooming the recipient of your communications in order to make it easier to procure a child to engage in sexual activity with you.
3. This offence is aimed at preventing the abuse of children. The fact that Sienna was a covert operative and no actual child was involved, is not mitigating.[4]
4. I regard your moral culpability to be high. The communications on the morning of 13 March 2023, where you expressed concern that Sienna was a police officer, make plain of your awareness that what you were contemplating was illegal.
5. I accept that the sexually explicit communication was limited to two days.[5] No inducements or any threatening behaviour was employed. You did not seek to conceal your identity, volunteering your true age, appearance and phone number. As I said earlier, the lack of concealment is relevant in that your conduct was no perverted fantasy, but you meant to follow up on sexual activity involving a very young child.

1. I have had regard to the following material tendered on your plea:

(i) Written plea submissions prepared by Ms Smith dated 14 February 2024.[6]

(ii) Psychological report dated 9 November 2023 prepared by Ms Pamela Matthews.[7]

(iii) Treatment reports dated 6 November 2023 and 14 February 2024 prepared by Ms Daria Sizenko.[8]

(iv) Reference from Mrs Swetha Kamat dated 18 October 2023.[9]

(v) Reference from Mr Kunal Sarna dated 15 October 2023.[10]

(vi) Reference from Mr Wesleigh Varnava dated 21 October 2023.[11]

First experience of custody and voluntary treatment upon release on bail

1. The period on remand, before being granted bail, was your first experience of custody. I am sure that this short period of incarceration would have brought home to you the seriousness of your offending conduct.
2. Since being granted bail on 11 April 2023, you have sought treatment at your own expense. Since 16 May 2023, up until your plea hearing, you have undergone 14 treatment sessions with a psychologist, Ms Daria Sizenko. You have indicated a willingness to continue with this treatment. I have had regard to the two reports prepared by Ms Sizenko dated 6 November 2023 and 14 February 2024. The sessions focused on exploring your insight and looking at factors contributing to your offending. The sessions also provided you with general mental health support. Ms Sizenko comments:

Mr Agrawal has been an active participant during the sessions, being open and willing to discuss prior maladaptive thought patterns and offending behaviour. He did not make attempts at dismissing or minimising his offending behaviour.[12]

1. Ms Matthews examined you on 20 October 2023 and prepared a psychological report. I have had regard to her report and note the following pertinent matters:

(i) Your educational background suggests that you function cognitively in the high-average range.

(ii) Your risk of re-offending in a similar manner over the next five years is estimated to be 5 percent.[13] Your risk of contact sexual offending is considered to be low to moderate.[14]

(iii) Based on the time period of your offending, you do not meet the criteria for a diagnosis of Pedophilia.

(iv) Despite the treatment sessions with Ms Sizenko, according to Ms Matthews, you retain a level of cognitive distortion. You maintained that your interest was in the adult female and not the child. Ms Matthews opines that you require further sex offender treatment.[15]

(v) You are diagnosed with Major Depression. The diagnosis is based on your current legal predicament. Therefore, Ms Matthews states that you meet the overarching diagnostic criteria of Adjustment Disorder with Anxiety and Depression. You have been taking anti-depressant medication since April 2023.

(vi) In Ms Matthews's opinion, any time in custody is likely to be quite burdensome in light of your mental health.

1. You pleaded guilty at the earliest opportunity. By pleading guilty, you have facilitated the course of justice and taken responsibility for your actions. You have also saved the community the time and expense of a trial.
2. Your plea of guilty attracts a greater utilitarian benefit, having been entered when the courts were facing significant delays in relation to criminal trials. The courts encouraged those who were guilty to so plead, by providing an 'actual and palpable' amelioration of sentence.[16]

1. Your comments to Ms Sizenko and Ms Matthews as outlined in paragraph 37 (iv) of these reasons, do not allow me to accept that you are entirely open and remorseful. However, in light of your pleas of guilty and the fact that you have sought voluntary treatment, I will accept that there is at least some remorse.

1. You are now 43 years of age and have no prior convictions. I have had regard to the three character references. You are described as a hardworking and trustworthy person. According to your wife, you are ordinarily a responsible person who has been very supportive during your marriage.

Impact of a custodial sentence upon family members

1. Your wife gave birth to your daughter on 19 January 2024. You provide support to your wife as you begin parenthood after a difficult few years. I was told you do not have any familial assistance. You parents live in Sydney and your wife does not have any contact with her family. I accept that your absence will make it difficult for your wife as a sole carer of your daughter without your support.

1. Bearing in mind Ms Matthews's findings, I accept that a term of imprisonment will weigh more heavily on you than it would on a person in normal health.

Sentencing submissions and establishing exceptional circumstances

1. On your behalf, Ms Smith conceded that a term of imprisonment was inevitable. However, she invited the court to release you immediately on the basis that exceptional circumstances were established.
2. Section 20(1)(b)(ii) of the Crimes Act 1914 (Cth) states that an offender being sentenced to a term of imprisonment on a Commonwealth child sex offence committed on or after 23 June 2020 must establish exceptional circumstances before a court can order their immediate release on a Recognisance Release Order (RRO). This provision has application here.
3. Ms Smith submitted that exceptional circumstances were made out by a combination of factors. She relied upon your early plea of guilty, voluntary engagement in treatment, absence of a prior criminal history, stable and supportive family, low-moderate risk of re-offending and good prospects of rehabilitation, the fact that your wife has recently given birth and requires your support and that a period of incarceration would interfere with the gains you have made in respect of your rehabilitation. Ms Smith referred me to the case of Phibbs v The King.[18]
4. In the alternative, if exceptional circumstances were not established, she submitted that the court consider release on a RRO following the serving of a short term of imprisonment.
5. On behalf of the Commonwealth Director, Mr Dhanapala submitted that the circumstances did not reach the requisite threshold of exceptional circumstances. He referred me to a Schedule of Comparative Cases[19] and submitted that a period of actual custody was warranted in any event. Mr Dhanapala accepted that a RRO was within range.[20]
6. What constitutes exceptional circumstances is not defined. In the case of R v Tootell ex parte AG [2012] QCA 273 at [18], the Court stated:

We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

1. In R v GAW [2015] QCA 166, the Court quoted R v Quick; ex parte Attorney-General (Qld) [2006] QCA 477:

What emerges, then, is there is no one clear prescription for what circumstances are capable of being regarded as exceptional. Consideration must be given not only to the unusualness of individual factors but to their weight; and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case.

... the court, in the sentencing process, must consider whether there are exceptional circumstances which, in the light of all the other aspects of the case including those described in s 9(6), warrant the imposition of a sentence which does not involve actual custody. The mitigating circumstances must be considered against a background of matters such as the egregiousness of the offending and the need for deterrence in determining whether they can be said to amount to exceptional circumstances of that kind.

1. In the more recent decision of R v Jones [2022] SASCA 105 at [45], the South Australian Court of Appeal stated:

Some uncommon features may militate against a finding of exceptional circumstances rather than support it. It is not a matter of a sentencing court sifting through the personal circumstances of an offender to find something that perhaps can be described as uncommon to support a finding of exceptional circumstances. That is not to say that the personal circumstances of an offender can never tip the scales in favour of a finding that exceptional circumstances exist. It depends. But the purpose of the section and the general sentencing considerations including general deterrence, personal deterrence and the protection of the community always loom large. A finding of exceptional circumstances must be based on an assessment of all of the usual sentencing criteria.

1. Both counsel were in agreement that in determining whether the combination of factors relied upon amounted to exceptional circumstances, the court was required to look at all the circumstances including the objective seriousness of the offending and the need to emphasise general deterrence.
2. It is not in dispute, for the reasons already alluded to, that your offending conduct is objectively serious. The communications occurred over some days and were persistent, manipulative and sexually explicit. The offending conduct was not limited to mere conversations, but involved firm plans to meet someone whom you believed to be a single mother along with her six year old vulnerable daughter.
3. As Ms Smith accepted, quite properly, general deterrence is a primary sentencing consideration. There is a paramount public interest in promoting the protection of children.
4. Having had regard to all relevant factors, I am unable to accept that you have established exceptional circumstances. In order to do justice to general deterrence in light of the gravity of your offending, a period of imprisonment to be served, is necessary. I do not regard that the one month you have served adequately meets all necessary sentencing purposes.
5. In addition to deterring others from committing similar vile offending, your offending must be appropriately denounced, you must be justly punished and the community protected. Deterring you from any further offending also has some relevance.
6. Majority of the matters relied upon in establishing exceptional circumstances relate to your rehabilitative prospects. While I accept that you have been undergoing treatment on a voluntary basis, I note that in Ms Matthews's assessment you are still struggling with developing insight. Further incarceration may to some extent impede your rehabilitation, however, I must not let rehabilitation take precedence over the importance of general deterrence. The fact that you have pleaded guilty or have no prior convictions is not unusual in cases like this.
7. While the factors relied upon to demonstrate exceptional circumstances may be similar to those in Phibbs v The King, one significant difference is that here your offending cannot be described as towards the lower end. I am required to look at all relevant factors, not only those that are mitigatory or concern your rehabilitation.
8. Your rehabilitation remains important. Section 16A(2AAA) of the Crimes Act requires the Court to have regard to the objective of rehabilitating you, including by considering whether it is appropriate in determining the length of any sentence or non-parole period, to include sufficient time for you to undertake a rehabilitation program. The principal purpose of rehabilitation in this context is to protect the community. I have taken this into account in sentencing you. The sentence I will impose will allow for sufficient time for you to undertake an appropriate sex offender treatment program.
9. I bear in mind that having served one month, you were released on bail. Returning you to custody in those circumstances, particularly in light of your current personal circumstances involving your new role as a parent, will be more difficult for you.
10. Having considered all relevant matters and circumstances, including the matters in Part 1B of the Crimes Act, I sentence you as follows:
11. Please stand Mr Agrawal.
12. On Charge 1, you will be convicted and sentenced to 2 years and 8 months' imprisonment. The sentence will commence today, 30 April 2024. I direct that you serve 6 months of the term imposed before being released on a RRO upon giving a security in the sum of $2,000 on the condition that you be of good behaviour for a period of 2 years.
13. You must also comply with the mandatory conditions under s 20(1B) of the Crimes Act for a period of 2 years. These conditions include being subject to the supervision of and obeying the reasonable directions of a probation officer, not travelling interstate or overseas without written permission from a probation officer, and undertaking such treatment or rehabilitation programs reasonably directed by a probation officer.
14. In addition, you are required to report to South Morang Community Corrections within two clear working days after your release, report to and receive visits from a Community Corrections officer, and notify an officer of any change of address or employment within two clear working days after the change.
15. Finally, you must attend for assessment, and if deemed suitable, undergo treatment for sex offender programs as directed in order to reduce your risk of re-offending.
16. If you breach the conditions of the RRO, you may be brought back before this Court and dealt with for that breach. One consequence of the breach is that you may be required to serve the unexpired portion of the sentence imposed upon you today.
17. Do you understand that Mr Agrawal?
18. Agrawal: Yes.

1. Pursuant to s 18 of the Sentencing Act 1991, the period of 30 days of pre-sentence detention, not including today's date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court's records.

Section 6AAA declaration

1. Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted you would have been sentenced to a term of 3 years and 6 months' imprisonment with a non-parole period of 2 years and 3 months.

1. Pursuant to the Sex Offenders Registration Act 2004, registration is mandatory and the reporting period is for eight years. Upon your release from prison, you must report your personal details to Victoria Police and continue to comply with the reporting obligations.

Written notice of the reporting obligations and the sentence imposed

1. You will now be given written notice of your reporting obligations upon your release and the consequences of any breach. It is an offence punishable by a term of imprisonment to fail, without reasonable excuse, to comply with your reporting obligations.
2. You will also be given written notice of the sentence imposed today, including the conditions that you must comply with.

[3] These statements are not relevant to prove the veracity of these statements in terms of any previous conduct.

[4] Of course, if an actual child was involved that would have been an aggravating factor.

[5] It is noted that the communication on 9 March 2023 occurred over some three hours.

[12] Third paragraph on page 2 of Ms Sizenko's report dated 6 November 2023. However, see footnote 15.

[13] Based on the Child Pornography Offender Risk Tool. There is a 72-74 percent chance that this risk estimate is correct.

[14] Based on the Kent Internet Assessment Tool.

[15] Similar comments were made to Ms Sizenko. See page 1 of her report dated 6 November 2023: He noted typically going along with whichever fantasy the other person expressed, as well as being conscious about being blocking and reporting people who were underage. He would similarly report and block accounts that would attempt to send him CAM images.

[16] Worboyes v The Queen [2021] VSCA 169; (2021) 96 MVR 344.

[17] R v Verdins (2007) 16 VR 269 ('Verdins').

[18] [2023] VSCA 123.

[19] R v Elwdah [2023] NSWDC 416; R v Lawrence [2022] Unreported NSWDC (17 June 2022); Meadows v The Queen [2017] VSCA 290; Moore v R [2018] NSWCCA 26.

[20] He sought to amend [39] of his written submissions (exhibit B).