DPP v Dhamala [2025] ACTSC 142

1. The offender, Ashok Dhamala, is to be sentenced for acts of indecency without consent contrary to s 60(1) of the Crimes Act 1900 (ACT). The offender was arraigned on 31 January 2025 and pleaded guilty to the following counts on the indictment dated 18 June 2024 in full satisfaction of the indictment: (a) Count 5: act of indecency without consent (CAN 9513/2023). (b) Count 6: act of indecency without consent (CAN 8857/2023). (c) Count 7: act of indecency without consent (SC CAN 118/2024).

2. Pursuant to s 60(1) of the Crimes Act, the maximum penalty for each act of indecency without consent is seven years’ imprisonment.

Agreed Facts

3. The facts relating to the offending were agreed. In summary, they are as follows. The offender was the housekeeping manager at the Mantra Macarthur Hotel in Turner, ACT. This involved supervision and management of all housekeeping staff, including rostering and allocation of work. He was assisted by one other full-time employee. He reported to the general manager of the hotel.

4. The victim commenced working as a casual housekeeper at the hotel in early March 2023. She is an immigrant from Nepal and spoke limited English. The offender is also an immigrant from Nepal, but has a good command of English.

5. The offender interviewed the victim for the job. The interview was conducted in Nepali. After the victim started work, the offender would occasionally tell her in Nepali that she was beautiful. She would ignore these comments.

6. The first offence occurred between March and August 2023. The victim was making a bed in one of the hotel rooms. The offender entered and locked the door. He placed his hand on her and pushed her towards the wall. He told the victim that she was beautiful and he wanted to marry her. The victim said, “I want to finish my work, I am new and I need this job, I have to finish my work on time”. The victim told him that she was married and not interested in anyone else. The offender tried to put his hand inside the victim’s shirt under her bra. She tried to stop him by holding his hand, but he managed to hold her left breast. He was then touching her forcefully under her clothes. She was saying no and asking him to stop, but he did not listen. He tried forcefully to move his hand towards her genitals. The victim resisted and the offender then said, “if you’re not ready to have sex, I will help you to masturbate my penis”. He then forced her to hold his penis and masturbate him until he ejaculated. The whole incident took between 15 and 20 minutes.

7. Subsequently, the offender continued to pursue the victim. He sexually propositioned her. The victim maintained a distance from the offender. When the victim said that she would contact the other permanent housekeeping employee, the offender said words to the effect of “if you say anything you will lose your job and I will lose my job”. He said words to the effect of “I’m not worried about me losing my job, but for you, your job is important”.

8. The second offence occurred on a subsequent date when the victim was in a corridor within the hotel waiting for the lift. The offender came up behind her and grabbed one her breasts tightly with one hand, causing the victim pain. She told him that it hurt and hit the offender’s hand with her lanyard. The offender then left.

9. After this incident, the victim asked the offender that she not be given shifts with him, but instead with the other housekeeping employee. The offender refused this request.

10. The third offence occurred on 16 August 2023. The victim and a colleague were working together. While the victim was working in one room, her colleague was working in another. The offender came into the room where her colleague was working and told her to attend fire safety training. He then went into the room where the victim was working. He asked her why she was not at fire safety training and told her to come with him. During the interaction, the offender said words to the effect of “you are very pretty” and hit her with his hand on the right side of her buttocks with force, causing her pain.

11. The victim did not consent to any of the three charged acts.

Victim Impact

12. No victim impact statement was provided. Section 53(1)(b) of the Crimes (Sentencing) Act 2005 (ACT) provides that the court must not draw any inference about the harm suffered by a victim from the fact that a victim impact statement has not been given to the court.

Objective seriousness

13. The offending in this case involved the exploitation of the power disparity inherent in the employment relationship between offender and victim. It also involved the exploitation of the offender’s physical strength and the economic vulnerability of the victim. These features of the offending mean that it is significantly more serious than if they were absent. All offending occurred in circumstances where the victim was obviously and unequivocally not consenting to it.

14. The first offence is clearly the most serious. It is in the mid to high range of objective seriousness for an act of indecency. The second and third are much less serious physical acts, but involve the exploitation of the power disparities to which I have referred. I would characterise them as being at the low end of the mid range of objective seriousness for this offence.

Subjective circumstances

15. Details of the offender’s subjective circumstances are obtained from a pre-sentence report, an intensive correction order assessment report, a report of Dr Richard Furst (a psychiatrist), a letter from the offender’s wife, and from his brother-in-law.

16. The offender was born and raised in Nepal. He had a middle-class upbringing in Nepal. He is the middle of his parents’ three children. He suffered sexual assault by an uncle over a year from the age of 13. He maintains close relationships with his parents and younger brother, who all live in Nepal.

17. He relocated to Australia as a 23-year-old in 2014. He married his wife in Nepal in 2016. The marriage was arranged. His wife moved to Australia in 2017. He is now 33. He has completed high school and tertiary education. He is the father of a 4-year-old child. Notwithstanding his offending, his wife continues to support him. He has a Master’s degree in professional accounting from the Federation University of Australia, completed in 2016. He initially worked in hospitality, hotel and customer service roles in Sydney, and then in 2018 was hired as housekeeping manager at the Mantra.

18. He and his wife own their own home subject to a mortgage. He has no problem with alcohol or illicit substances. He has some ongoing consequences from his earlier sexual assault, although he has not received psychological treatment in relation to it.

19. He appeared to the author of the pre-sentence report to have insight into his offending and expressed a desire to engage with a sex offender program and further therapy to address offending behaviours. That was consistent with what he told Dr Furst, namely that his actions were “the biggest mistake of his life” and that he could not say sorry enough. Dr Furst did not disclose any relevant psychiatric condition. He did identify that victims of sexual abuse in childhood have approximately an eight-fold higher rate of sexual offending as adults compared to adults who have not been sexually abused as children. Dr Furst expressed the opinion that “overall, he presents as having good prospects of being successfully rehabilitated”.

20. He was assessed as suitable for a community service work condition and suitable for an intensive correction order.

21. The offender tendered a supporting letter from his wife that reports him as being “a good husband, good provider and a good father”. She describes him as a “person of good character” and that the imprisonment of her husband would be “bad for our family, financially and otherwise”. For example, she and her son rely on the offender to drive them to places as she does not drive. He also has a letter from his brother-in-law who is supportive of the offender and indicates that he is otherwise a person of good character.

Criminal history

22. The offender has no criminal history.

Plea of guilty

23. The offender was committed to the Supreme Court for trial on 18 April 2024. A seven-count indictment was filed on 19 June 2024. The offender was arraigned on this indictment on 10 July 2024 and entered pleas of not guilty to each count. A criminal case conference took place on 23 October 2024, and a tendency application was listed for 29 January 2025. The tendency application was adjourned to 31 January 2025 to allow for discussions between the parties. The offender then entered pleas of guilty to counts 5 to 7 of the indictment on 31 January 2025. A date for trial had not been set. In my view, in those circumstances a reduction in sentence of approximately 15% is appropriate on account of the plea of guilty.

Time in custody

24. The offender was arrested on 9 September 2023 and was granted police bail the same day.

Consideration

25. As pointed out earlier, the offending is made significantly more serious by the exploitation of the employment relationship between the parties, the physical strength of the offender and the economic vulnerability of the victim. It is clearly disgraceful conduct which must be denounced. The harm to the victim must be recognised. Conduct of this sort must be deterred. It is completely unacceptable that persons who are vulnerable because of their limited language skills and, consequently, limited employment opportunities, are sexually exploited in the workplace.

26. The prosecution submitted that a sentence of imprisonment should be imposed, but made no submissions as to how it should be served. Counsel for the offender submitted that, although a custodial sentence may be appropriate, an intensive correction order would be an available disposition.

27. There is no doubt that, notwithstanding the absence of any criminal history, the purposes of sentencing require a custodial sentence of some sort to be imposed. The more difficult issue is whether, in circumstances where the offender has pleaded guilty, demonstrated remorse and appears to have good prospects of rehabilitation, the purposes of sentencing require that he serve a sentence involving a period of full-time imprisonment.

28. In my view, the starting point on the first charge is a sentence of 15 months’ imprisonment, reduced to 13 months on account of the plea of guilty.

29. The next issue is how the sentence should be served; whether it should be wholly or partly suspended or the subject of an intensive correction order. The principal issue here is whether allowing any or all of the sentence to be served in a way that does not necessarily involve a period of full-time detention would adequately meet the purposes of sentencing having regard to the objective features of the offending outlined above. In particular, would a sentence that did not involve full-time detention adequately denounce the conduct and deter others from such conduct?

30. In determining this issue, I have been influenced by the fact that the material before the court is consistent with the offender being genuinely remorseful, having insight into the impact upon the victim and being willing to participate in any courses or programs in which he is directed to participate.

31. Having regard to these factors and the potential to increase the punitive component of the sentence through the imposition of a significant requirement for community service, I consider that it is possible to dispose of the matter in a way that does not necessarily require a period of full-time detention. I will make an order that the sentence be served by intensive correction.

32. In relation to each of the other charges, although the seriousness of each is affected by the earlier, more serious conduct, I consider that each may be disposed of by a fine of $3000 to be paid within two years and a good behaviour order for a period of two years and six months. The imposition of the fine is intended to increase the overall punitive component of the sentences imposed today.

33. Given the expressed attitude of the offender, I consider that a referral for restorative justice is appropriate in relation to each offence. Orders

34. The orders of the Court are: (1) On the charge of committing an act of indecency without consent (CAN 9513/2023) the offender is convicted and sentenced to imprisonment for 13 months commencing on 10 April 2025 and ending on 9 May 2026. (2) The sentence is to be served by intensive correction in the community pursuant to s 11 of the Crimes (Sentencing) Act 2005. (3) The intensive correction order in relation to CAN 9513/2023 includes conditions that: (a) the offender perform 200 hours of community service within the period of the order; and (b) the offender complete any offence-specific treatment program or any trauma informed therapy program which he is directed to complete by the Director-General. (4) On the charge of committing an act of indecency without consent (CAN 8857/2023) the offender is convicted and fined $3000 which is to be paid within two years and required to enter into a good behaviour order for a period of 30 months. (5) On the charge of committing an act of indecency without consent (SC CAN 118/2024) the offender is convicted and fined $3000 which is to be paid within two years and required to enter into a good behaviour order for a period of 30 months. (6) Each of the charges is referred for restorative justice pursuant to s 24 of the Crimes (Restorative Justice) Act 2004.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 17 April 2025