The circumstances of your offending can be summarised as follows.
You and the victim worked at a restaurant/bar in Fitzroy. You had worked there for some time. She had just commenced working there. You were aged 29. She was aged 23 and was on a working holiday in Australia at the time.
On the evening of 12 March 2017, after you and the victim had finished your respective work shifts, you met for a drink at a nearby hotel at about 1 am. The two of you spent some time at the hotel. You both consumed alcohol. You and she kissed. She told you that it was just a kiss and it did not mean anything. You and she danced and generally socialised.
At about 3 am, you left the hotel together. She told you that she was going home. You offered to walk her home. She initially told you that that was not necessary, but after a short discussion, she accepted your offer.
At the time, you lived in Braybrook. You told her that you would need to get up at 6 am in order to be in Fitzroy where you had a second job. When you arrived at the victim's home, she said that you could sleep on a couch.
You and the victim took her dog for a walk in a nearby park. In the park, you and she kissed again. You returned to her home. She set up two couches in the living room, one for herself and one for you. She told you that she would be sleeping on one of the couches because she did not want to disturb her friend with whom she shared a bedroom.
The victim undressed to her bra and underpants in front of you. She then covered herself with a blanket and went to sleep on one of the couches. She woke up to find you licking and sucking her breasts. She pretended to be asleep. This conduct constitutes that of Charge 2, being that of sexual assault.
You then stood up, unbuckled your belt, took out your penis and got on top of the victim. You put your penis inside her vagina. She continued to pretend to be asleep. Her evidence was that she froze, not knowing what to do. She did nothing until you stopped. This conduct constitutes Charge 4, namely rape.
The victim then demanded that you leave the house. She was upset and began to cry. She said that you had raped her. You said that you had stopped when she told you to stop. She again asked you to leave and you did so. Shortly after, the victim observed that your semen had been ejaculated into her vagina.
Later that day, she reported your conduct to police and was later examined at The Royal Melbourne Hospital. On 28 March 2017, you were arrested and taken to the Melbourne West police station where you made a no comment record of interview
At the time of the offending, you were 29 years of age. You were born in Chitwan in Nepal in 1987. You lived with your mother, father and a younger brother. You attended school at the Birana English Boarding School and Oxford Higher Secondary School. Your counsel submitted that you had a good upbringing.
You were enrolled to commence a Bachelor in Computer Application course when you decided to travel to Australia on a student visa. You arrived here in 2008. Your first visa expired in about 2010. You then applied for a second student visa which was initially refused but later granted following a review. The second visa expired in about 2015. You did not return to Nepal at that time as your family was urging you to remain in Australia following the April 2015 earthquake in Nepal. Despite no longer holding a valid visa, you remained in Australia.
At the time of the offending, you had been employed at the restaurant bar as a barista for about seven months. You had also secured a second job at a nearby café. You have no criminal history and I am to sentence you as a person assumed to have been of good character up until your offending.
The purposes for which a court may impose a sentence in respect of an offence include:
the denunciation of your offending conduct,
to deter you and others in the community from committing such offences in the future, and
the protection of the community.
I am required to have regard to a number of matters including:
the seriousness of your offences,
your culpability for them,
your personal circumstances,
whether or not you pleaded guilty to the offences,
any remorse that is shown by you for your offending, and
whether you have any relevant prior convictions.
I have taken into account each of the matters set out in s.5(2) of the Sentencing Act. I consider these offences to be serious ones and your culpability for them is high.
I note the maximum penalty for your offences are substantial. For sexual assault, the maximum penalty is ten years' imprisonment. For rape, the maximum penalty is 25 years' imprisonment. Those maximum penalties demonstrate just how seriously Parliament considers these offences to be.
Since your arrest on 28 March 2017, you have been detained in immigration detention, partly on Christmas Island on two separate occasions and partly at the Maribyrnong Detention Centre.
Your counsel submitted and I accept that the punitive nature of your time spent in immigration detention, especially in the isolation at Christmas Island, should be taken into account in sentencing you. Your counsel conceded that such detention could not, however, be treated in the same way as pre-sentence detention in a prison or on remand in respect of these offences.
I accept that immigration detention by its very nature is non-voluntary detention involving severe restrictions on your liberty. However, the reason for such detention was not that you had been arrested and charged with these offences, but because you were in Australia without a valid visa.
Your counsel directed me to the 2018 Court of Appeal decision of Underwood v The Queen (No.2), a case with some similarities to yours. There, Underwood was convicted of three counts of rape and one count of indecent assault. He had been held in immigration detention for almost two years leading up to his trial because he was an unlawful non-citizen. In discussing the relevance of his time spent in immigration detention as a sentencing consideration, Priest and McLeish JJA stated as follows,
[3]
"In the present case [that is Mr Underwood's case], the appellant was forced to contemplate his fate whilst held in immigration detention. Fairness dictated that the sentence imposed upon him ought to reflect the fact that the appellant had been kept in suspense, with charges hanging over his head for two years, in circumstances where he was deprived of his liberty during that period. In a broad and practical way, the fact of his detention needed to be reflected in the sentence imposed upon the appellant. It is difficult to see that so much was indeed adequately reflected in the total effective sentence or non-parole period imposed by the sentencing judge."
[4]
I do take into account your time spent in immigration detention when determining your sentence in the sense to which their Honours referred.
Further, the fact that you may be deported after serving your sentence is not a mitigating factor in itself. However, I accept that to have deportation hanging over your head throughout a term of imprisonment is a matter likely to make that term more onerous for you than would otherwise be the case. In that sense, I take it into account.
Your counsel submitted that there were factors indicating that you have relatively good prospects for rehabilitation. He submitted, and I accept, that your lack of criminal record suggests that this offending was isolated. Your familial support as well as your strong history of education and employment were submitted to be signs that suggest that your prospects for rehabilitation are good. Further, I accept that your offending could be appropriately described as opportunistic rather than planned or premeditated.
However, there are a number of aggravating factors that must be considered when determining your sentence. Firstly, you did not wear a condom and therefore exposed the victim to a risk of sexually transmitted disease and unwanted pregnancy.
I accept that you commenced your assault upon her whilst she was asleep and therefore vulnerable.
Your offending is objectively serious. She was entitled to feel safe as she slept on a couch at her home. You took advantage of her.
This was not a case of a single impulsive act. Your actions were sustained and deliberate.
I accept that you would have known that what you were doing to the victim was wrong. Your moral culpability for your actions are high. Although you had engaged in consensual kissing earlier in the night, this could not have amounted to or been interpreted by you as consent to sexual foreplay or sexual intercourse.
A victim impact statement made by the victim was tendered by the prosecutor. In it, she refers to what she considers to be the effect that the relevant offences had upon her. She stated that before you raped her, she saw herself as a positive person who was mostly happy, full of energy and trusting of others. She had intended to make her life here in Australia. She stated that since the offending:
She has become someone who reconsiders her decisions.
She lives in fear.
She has made small changes in her life such as not getting home late, calling or texting with a friend when walking alone and not talking like she used to with strangers and had become joyless and reclusive.
She no longer trusts other people.
She described having to go to court to give evidence as 'the hardest thing that [she] ever had to do in [her] life.
Her statement vividly reflects the emotional injuries that your offending has inflicted upon her and I have taken that into account when determining your sentence. Your plea of not guilty indicates a lack of remorse on your part. You are not entitled to any discount of sentence which attaches to a plea of guilty.
Taking all of the circumstances into account, I have come to the conclusion that no sentence other than a significant and immediate term of imprisonment can achieve the sentencing purposes set out in s.5 of the Sentencing Act. Your counsel conceded that a custodial term must be imposed.
Stand up please, Mr Bhandari.
On the charge of rape, you are convicted and sentenced to a term of imprisonment of six years. This will be the base sentence.
On the charge of sexual assault, you are convicted and sentenced to a term of imprisonment of one year, six months of which is to be served cumulatively upon the base sentence. It follows that the total effective sentence of imprisonment imposed is six years and six months.
I order that you shall not be eligible for parole until you have served four years of that term.
Now, in terms of pre-sentence detention, Mr Godleman, what is the calculation today?
MR GODLEMAN: Fifty-five days, Your Honour.
HIS HONOUR: Pardon?
MR GODLEMAN: Fifty-five.
HIS HONOUR: Fifty-five. Not including today?
MR GODLEMAN: Not including today.
HIS HONOUR: And Ms Clothier, is that your calculations also?
MS CLOTHIER: Yes, Your Honour.
HIS HONOUR: Thank you.
I declare that you have served 55 days of pre-sentence detention, not including today. I direct that such period be reckoned as time already served pursuant to this sentence and be recorded as such in the records of this court.
What, if any, ancillary orders are sought?
MR GODLEMAN: No further orders, Your Honour.
HIS HONOUR: Yes. Anything else that counsel want to raise at this point?
MR GODLEMAN: No, Your Honour.
HIS HONOUR: Thank you. Yes, Mr Bhandari may be taken downstairs. Thank you. Yes, sine die.