DPP v Timalsina

1. Abhishek Timalsina (the offender) is before the court for sentence in relation to six offences, having been found guilty following a trial by jury. He is to be sentenced for: (a) two offences of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act); and (b) four acts of indecency without consent, contrary to s 60(1) of the Crimes Act.

2. The maximum penalty for an act of indecency offence is a term of imprisonment for seven years. The maximum penalty for sexual intercourse without consent is a term of imprisonment for 12 years.

3. The court’s task is to sentence the offender in accordance with the sentencing purposes set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), taking into account the mandatory relevant considerations set out in s 33 of the Sentencing Act insofar as they relate to the offender’s circumstances, and applying the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56].

4. Although the imposition of a term of imprisonment is a sentence of last resort (s 10 of the Sentencing Act), it was accepted that imprisonment was appropriate here and the offender has been in custody since the trial, as well as for separate periods following his arrest and the second trial. The issue between the parties was directed to the manner in which such a sentence was to be served.

Facts

5. The facts on which the offender is to be sentenced must be consistent with the jury’s verdicts: Cheung v R [2001] HCA 67; 209 CLR 1 at [14]. Here, the facts taken to have been established by the jury are: (a) On 3 November 2022, the offender was working as a shop assistant at the Eckersley’s art supply store in Belconnen. (b) At about 4:36pm the victim entered the store for the purpose of buying art supplies. (c) The offender and the victim engaged in conversation about art and photography. (d) At approximately 4:59pm, the offender pulled the front shutters of the store to a complete close with the offender and the victim the only persons remaining in the store. The victim believed that the shutters were locked, although they were not. (e) Between 5:00pm and 5:06pm, at the offender’s suggestion and insistence, the offender took photographs of the victim at the front of the store, at the back of the store and then in the back staffroom. (f) The victim expressed her discomfort at being photographed. The offender hugged her in response. He asked her if she wanted to try “something crazy” and had her change into an Eckersley’s staff shirt. The offender also asked the victim whether she had a boyfriend. (g) At approximately 5:07pm, the offender entered the back staffroom where the victim was seated on a chair after the offender had told her to pose there for another photo. (h) The offender asked the victim whether she wanted him to kiss her and, without waiting for a response, said words to the effect of “I’m just going to go for it”. He walked up to the victim, took her by the face and started to kiss her (first act of indecency). The victim ended up kissing the offender back although not immediately. The kiss went for approximately two minutes. (i) The offender tried to unzip the victim’s jeans, but the victim pushed his hand away. She asked him about the CCTV cameras in the store. The offender told her they were not working. The offender then unzipped her jeans, placed his hand in her underwear and touched her genital area (second act of indecency). (j) The victim was scared. She froze and stopped reacting. (k) The offender lifted the victim’s shirt, placed his mouth over her breast and sucked her breast (third act of indecency). (l) The offender pulled down the victim’s jeans and underwear. The offender asked the victim whether she wanted to taste his penis to which she said no. (m) The offender asked the victim whether she had ever done this before, and she said she had not. (n) The offender placed his hands on the victim’s shoulders and began to turn her around to face away from him and towards the table. The victim unsuccessfully resisted this. The victim believed that it was inevitable the offender was going to have sexual intercourse with her. She asked whether he at least had a condom. The offender told her it was okay, and he would “pull out”. (o) The offender pushed the victim to lean on the chair, crouched down and placed his mouth around the victim’s anal area (fourth act of indecency). This occurred for approximately 10-15 seconds. (p) The offender stood up and inserted his penis into the victim’s vagina and moved back and forth (first sexual intercourse without consent). This occurred for approximately one minute. (q) The offender asked the victim where she lived, and she told him the suburb. Shortly after the offender pulled out of the victim and ejaculated on her lower back. (r) The victim remained in the same position because she was not sure whether she had permission from the offender to get up and was too afraid to move. (s) The offender said “Oh, do you want more?” and reinserted his penis into the victim’s vagina (second sexual intercourse without consent). (t) At approximately 5:12pm, the victim and the offender exited the back staffroom. The victim asked the offender whether he owned the store. The offender asked the victim for her phone number. She ignored him. The offender led the victim to the front of the store. The offender said that they should do it again and gave the victim another hug. The victim left the Eckersley’s store.

6. The jury’s verdict involved satisfaction beyond reasonable doubt of the element of recklessness with regard to the conduct comprised in each of the offences. There are different pathways by which that element may have been established. The prosecution submitted that for each fact, the court would be satisfied beyond reasonable doubt that the offender was either advertently or inadvertently reckless. The offender submitted that he genuinely believed the victim was consenting, albeit such belief was unreasonable having regard to the jury’s verdict. I will explain shortly why I did not consider it significant to identify the precise pathway in the circumstances of this case. However, to avoid any subsequent debate or complaint about a lack of findings in this regard, I will also record the findings of fact for each act.

7. In doing so, as stated by Baker J in DPP v Umunakwe (No 2) [2025] ACTSC 139 (Umunakwe (No 2)) at [4], the court is not required to take the most lenient nor favourable view of the facts: Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [64]- [70]. For any aggravating matter, the court must be satisfied beyond reasonable doubt. For any mitigating matter, the court must be satisfied on the balance of probabilities: R v Olbrich [1999] HCA 54; 199 CLR 270.

8. With regard to the initial kiss, I am satisfied beyond reasonable doubt that the offender turned his mind to whether the victim consented to that act and that he went ahead regardless of whether she consented. What he said at the time explicitly reflected that state of mind (advertent recklessness).

9. With regard to the touching of the victim’s genitals, the victim’s account having been accepted by the jury, the offender would have known that the victim had pushed his hand away from unzipping her jeans. By that conduct I am satisfied beyond reasonable doubt that he would have realised the possibility that the victim was not consenting and proceeded anyway in circumstances where the victim had done nothing to indicate consent (advertent recklessness).

10. With regard to the two acts of indecency that followed, the circumstances establish that the offender did not turn his mind to the victim’s consent at that point. He wanted to go further than a kiss and so he did. There was a complete disconnect between the offender’s perception and reality. He had no real appreciation of the shock and fear that he had instilled in the victim by his actions. He simply assumed that because he wanted to have a sexual encounter in a storeroom with a person who had he just met, that person also wanted to do the same.

11. Had he given any consideration to the victim, the possibility that she did not agree to him placing his mouth on those intimate body parts was obvious. I am satisfied beyond reasonable doubt that the offender was inadvertently reckless as to whether the victim consented to the offender touching her breast and putting his mouth around her anus.

12. With regard to the two acts of sexual intercourse, the lines between proceeding with the act regardless of the victim’s total lack of response (advertent recklessness), proceeding without thinking about whether the victim consented (inadvertent recklessness) and proceeding with the act because of an assumption of consent (albeit unreasonable) are very fine indeed. Given the conversation that occurred in relation to a condom or protection, I am not satisfied to the criminal standard that the offender was advertently or inadvertently reckless. The offender may have had a genuine belief in the victim’s consent, but any such belief was unreasonable at law.

13. With regard to the second act of sexual intercourse, I am satisfied beyond reasonable doubt that the offender turned his mind to whether the victim consented to a further act of sexual intercourse, because the words he used (to the effect of asking if she “wanted more”) expressed that very state of mind. Again however, the reasonable possibility that the offender had a genuine belief about the victim’s consent leads to the conclusion that recklessness on this count was established by the genuine but unreasonable belief pathway. The significance of those findings, or lack thereof, is discussed next.

Nature and circumstances of the offence (s 33(1)(a) of the Sentencing Act)

14. A consideration of the nature and circumstances of the offences includes assessing the objective seriousness of the offences, with the maximum penalties set out above providing a yardstick for that assessment.

15. The offence of an act of indecency covers a wide spectrum of conduct, from sexualised words to genital-on-genital contact (see R v Ardron [2021] ACTSC 91 at [37]). In this case, all four acts of indecency involved violations of the victim’s bodily integrity in terms of physical touching. I accept the prosecution’s submission that the direct skin-on-skin contact, to the victim’s genital area and anal area, are grave examples of this type of offending and objectively more serious than the kissing of the victim on her mouth and sucking of her breast.

16. In relation to the offence of sexual intercourse without consent, again there is a wide spectrum of criminal culpability: see R v Simon [2010] VSCA 66 at [60]. It encompasses both predatory and humiliating acts of forced penetration and “fleeting, impulsive acts undertaken without regard to whether there is consent from the victim”: DPP v Earle [2023] ACTSC 93 (Earle) at [23]. Further, as observed in Umunakwe (No 2) at [61], following the amendments to s 54 of the Crimes Act, the offence now also encompasses acts of sexual intercourse where the offender has an honest, but objectively unreasonable, belief that there was consent to sexual intercourse.

17. Here, I have taken into account that the two acts of sexual intercourse without consent were opportunistic, occurring when the offender and victim were alone. The attack was short. The victim was assaulted more than once but as each has been separately charged, that does not aggravate the conduct. The nature of the sexual intercourse was more objectively serious than digital penetration, and the gravity of the conduct is increased by the lack of use of a condom, exposing the victim to sexually transmitted disease and the risk of pregnancy.

18. It was submitted that the victim did have a degree of vulnerability, or the offender had knowledge of the victim’s personal circumstances, namely that she had never had sex before (s 33(1)(d) of the Sentencing Act). There was some ambiguity in the evidence on that. The victim believed she was telling the offender she had never had sex before. The offender believed that he was asking her about whether she had ever had sex with a stranger before. This is not a factual dispute where the verdict of the jury resolves that controversy. I have not taken that into account in aggravating the objective seriousness of the conduct.

19. Otherwise, I have not listed the absence of other features that may have aggravated the sentence, because the fact that the offending was not worse does not mitigate the conduct.

The offender’s moral culpability

20. It has been said that an offender’s culpability will be informed by all of the circumstances and that as a general (but not invariable) proposition, the culpability of an offender who believes the victim is consenting may be less than that of an otherwise equivalent offender who knows the victim is not consenting: R v Ibrahim [2021] NSWCCA 296 at [48].

21. I do not disagree with the concept of varying degrees of moral culpability depending on an offender’s state of mind. Equally though, there are cases where such distinctions do not really matter in the court’s overall assessment of an offender’s responsibility and to my mind, this is one of them. As McCallum CJ stated in Earle at [28]: … The law has a tendency to assume bright line clarity in the mind of an offender between having consent to sexual activity or not. In truth, the issue of consent in sexual relations can be complex, changing, awkward and messy. The freeze response is now better understood than it once was as a normal response to unwanted sexual activity. That is why parliaments across the country are clarifying the law to make plain that consent must be positively communicated and not assumed.

22. The circumstances of this case were not common. A woman went into an art supply store in a busy shopping centre to buy art supplies and came out half an hour later having been sexually assaulted by a stranger. The sequence of events whereby that occurred were all orchestrated by the offender.

23. He shut the doors to the store. Yes, there was a reason for it, in that it was closing time, but in doing so, the offender created an environment that was private in an otherwise public shopping centre. Whether or not the shutters were locked is irrelevant when evaluating the offender’s state of mind and it is his moral culpability that is being assessed here. But the victim’s perception was that she was locked in the store. That private environment increased the victim’s vulnerability.

24. Next, the offender conducted a spontaneous photo shoot to bring about the movement of the victim to the back of the store and into a confined space in the staff room. He asked the victim to change into a t-shirt, still under the guise of the photo shoot.

25. He then effectively trapped the victim between the table and himself, by entering into the doorway of that small room and kissing the victim before she could respond.

26. In the circumstances that he had engineered, the overall state of mind of the offender was to take advantage of the opportunity that he had created for sexual activity (in whatever form) to occur as opposed to being predatory or pre-meditated (as to which see R v Goboly [2016] ACTSC 322 at [40]-[45]). That said, his moral culpability for what followed, with the acts all occurring within a short space of time of each other, was clear.

27. The events that occurred here were not of a kind where it was “necessary to pinpoint the seriousness of the offence on a notional line” to use the language in Earle at [27]. I did not consider it helpful to focus too closely upon a strict delineation between whether the offender did or did not turn his mind to the possibility that the victim might not be consenting, or whether the offender had a genuine but unreasonable belief that the victim was consenting to each act. Picking apart the precise thought in the offender’s mind when each act occurred to determine whether he was advertently or inadvertently reckless or had a genuine but unreasonable belief about consent made little difference to my evaluation of the offender’s moral culpability in respect of each act. In the events that occurred here, that kind of exercise seemed to me to run contrary to the whole point of the informed consent legislation, which is to make people responsible for actively seeking and obtaining free, informed consent to sexual activity. Any assumptions he made or belief he may have formed about the victim’s consent to any act were delusional, or as the prosecution submitted, unreasonable in the extreme. Mitigating the offender’s culpability on the basis of any such belief was inappropriate.

Victim impact statement (s 33(1)(f) of the Sentencing Act)

28. A victim impact statement was before the court. In the aftermath of the offending, the victim felt overwhelming shame and distress. Her mental health deteriorated, and this resulted in hospitalisations as well as significant disruptions to her work and study. She had frequent flashbacks, panic attacks and nightmares that made her scared to sleep. She became hypervigilant and afraid of all men.

29. The victim felt as though her life had shrunk and considered moving away from the city that she loves. She largely stopped painting because of its association with the offending. Her student visa had to be extended twice, which added considerable stress and uncertainty to the challenges she was already facing.

30. Although it has now been three years since the assault, the victim still experiences the same panic attacks, flashbacks and self-blame. She has lost sleep, appetite, confidence and her sense of self. She continues to struggle with her mental health and the fear that this offending instilled in her. As the prosecution submitted, this offender’s five minutes of pleasure has caused ongoing trauma for the victim. Her psychological pain and distress are of the “intense and enduring” kind discussed in cases such as Earle at [22] and Umunakwe (No 2) at [62].

31. It is heartening to know that notwithstanding the trauma she has suffered and its ongoing effects, in recent months, the victim has graduated university and resumed full-time work. She has resolved to keep trying. Building on those successes may well see her gain further strength to become positive about her future. It is not tied to this offender in any way. Following this sentencing process, difficult though it may be, if she can banish thoughts of this offender and what he did to her, it may help her to avoid the mental punishment that such thoughts produce. The physical and mental consequences for what occurred should be borne entirely by the offender.

Subjective circumstances of the offender (s 33(1)(m) of the Sentencing Act)

32. The offender is a 31-year-old man and was born and raised in Nepal. He was 28 years old at the time of the offending.

33. The offender had a difficult upbringing, with his mother living abroad for work and his father having left the family before he was born. He went to boarding school and had to be cared for by extended family members. I have had regard to other matters contained in the pre-sentence report, the details of which do not need to be repeated here.

34. The offender is fortunate to have the ongoing support of his wife of eight years, whom he first met in 2013 and married before migrating to Australia in 2018. Until his incarceration he had a consistent employment history. He otherwise has pro-social interests and appears currently to be in good mental and physical health.

35. At the time of the offence, the offender had no criminal history (s 33(1)(m) of the Sentencing Act). Since the offending, he failed to appear during the middle of the second trial of these offences in September 2024, a matter for which he will be sentenced at a later date. I have applied Veen v The Queen (No 2) (1988) 164 CLR 465 at 478, in that although there are serious offences before the court, the offending may equally be viewed as a single course of offending on one evening that was uncharacteristic of the offender.

36. The report of the offender’s mental health and his behaviour while in pre-sentence custody is consistent with the conduct being out of character. He has attended eight counselling sessions. He became a trusted detainee working as a roving peer mentor. Particular hardship of conviction or imprisonment (s 33(1)(r) of the Sentencing Act)

37. The court must take into account whether the recording of a conviction or the imposition of a penalty would be likely to cause particular hardship to the offender. The court must also take into account the probable effect that any sentence or order under consideration would have on the offender’s family or dependants: s 33(1)(o) of the Sentencing Act.

38. The offender is at risk of being deported if an overall sentence of greater than 12 months in aggregate is imposed. Section 501(3A)(a)(i) of the Migration Act 1958 (Cth) (Migration Act) provides that the Minister must cancel a visa if the Minister is satisfied that the person does not pass the character test because of a substantial criminal record.

39. A “substantial criminal record” is defined in s 501(7)(c) of the Migration Act to include a term of “imprisonment” of 12 months or more, or concurrently imposed terms of imprisonment which, had they been imposed cumulatively, would have been 12 months or greater in aggregate.

40. The approach to this issue has been considered in The Queen v Ruwhiu [2023] ACTCA 18 (Ruwhiu) by Loukas-Karlsson J (with whom Rangiah J agreed) at [82]-[90]. To paraphrase the statements set out in that passage: (a) The prospect of deportation can be taken into account as a relevant mitigating factor, but not in a way designed to circumvent migration laws: Ruwhiu at [82], citing Ngata v The Queen [2020] ACTCA 18 (Ngata) at [46]-[47]. (b) The court may take into account the burden that the prospects of deportation would impose on an offender’s term of imprisonment, in terms of hardship to third parties and in considering the experience of imprisonment for an offender who knows they are likely to be deported at the end of serving their term: Ruwhiu at [85]; Ngata at [35]. (c) The mandatory nature of visa cancellation in s 501(3A) of the Migration Act establishes the necessary evidentiary threshold without further evidence being required to prove the likelihood of deportation: Ruwhiu at [90], citing R v Atai (No 2) [2021] ACTSC 272 at [25]; Allouch v The Queen [2018] VSCA 244 at [40]- [42]; R v GBD [2018] QCA 340; 342 FLR 244 at [14], [51]-[54]; and R v Leka [2017] SASCFC 77 at [20]-[23], [30].

41. See also Umunakwe (No 2) at [74]-[77].

42. Here, a sentence of imprisonment of more than 12 months may have further consequences for the offender in exposing him to the risk of deportation and at the very least, the need to make representations to the Minister under s 501CA(3)(b) of the Migration Act. This will weigh heavily on the offender and his wife, during and possibly after any period of imprisonment imposed, although the evidence was not that any such consequence was likely or imminent.

Remorse (s 33(1)(w) of the Sentencing Act)

43. The offender pleaded not guilty and still maintained his views about what occurred even subsequent to the jury’s verdicts. There is no room for mitigating the sentence on the basis of remorse.

Current sentencing practice (s 33(1)(za) of the Sentencing Act)

44. I have had regard to the recent sentencing decisions of this court in respect of acts of indecency and acts of sexual intercourse without consent, including the authorities dealing with those offences earlier in these reasons. In respect of the sexual intercourse without consent, there is also a table of recent cases helpfully included in Umunakwe (No 2) as an annexure and further discussion of the authorities in Earle at [47]-[54]. They include cases where there was sexual intercourse by digital penetration and where there was knowledge of non-consent (such as where the victim was asleep). As the prosecution submitted, there is no case of directly comparable assistance due to the unique factual matrix of this case.

45. The main consideration with regard to sentencing practice is the manner of the sentence to be served. In Wyper v R; R v Wyper [2017] ACTCA 59; 19 ACTLR 288 (Wyper) at [114]-[115], the Court of Appeal applied the following principles as relevant to sentencing in sexual offences: (a) Sexual offences are regarded as objectively serious offences by the courts; (b) The serious nature of sexual intercourse without consent demands that the sentencing purposes of deterrence, denunciation and recognition of harm to the complainant be given prominence; (c) A period of full-time imprisonment is usually necessary to give effect to the above sentencing principles.

46. The offender also relied on Wyper for another purpose; namely, to submit that there is no general rule of sentencing practice that an intensive correction order (ICO) will never be appropriate (Wyper at [129]). He submitted there is no legislative impediment to such an order, pointing to cases such as Earle where an ICO was imposed, as well as DPP v Donnelly [2025] ACTSC 452 as a further example (albeit that case had distinguishing facts). I accept that submission. Pre-sentence custody

47. As at the date of sentence, the offender has spent 228 days in custody referable to the offending. They will be taken into account by way of backdating: s 63(1) of the Sentencing Act.

Totality

48. The approach to principles of concurrency and accumulation has been set out in Dawson v The Queen [2019] ACTCA 9 at [37] (and the cases there-cited). The offending was plainly a course of conduct (s 33(1)(c) of the Sentencing Act). The sentences to be imposed in respect of the acts of sexual intercourse without consent are largely able to comprehend the criminality of the acts of indecency. A significant degree of concurrency is warranted, but also a degree of accumulation to recognise the separate offences to the extent that the structure and manner of the sentence to be imposed here allows.

49. In terms of structure, it is often a desirable approach that the offences of the most serious objective gravity be served first. However, the time spent in presentence custody and the desire to demonstrate a separate period of time to be served in respect of the two types of offences have resulted in a different structure here.

Disposition

50. The two principles that I have borne in mind are: (a) that the sentence which the court imposes must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R 232 at [37], cited in R v Lindsay [2020] ACTCA 25 at [32]; and (b) that a sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives: Thorn v Laidlaw [2005] ACTCA 49 at [30].

51. In this case, the offender was found suitable for an ICO and the offender’s counsel deftly advocated for that outcome. My view is that given the gravity of the offending and the ongoing harm to the victim, even having regard to the 228 days that have now been spent in custody and the lack of any criminal history for this offender, an ICO going forward is not the appropriate form of sentence.

52. However, I accept that specific deterrence has been achieved by the time already spent in custody. For the two acts of sexual intercourse without consent, further time in full-time custody is necessary to give effect to general deterrence, punishment and denunciation considerations as well as recognition of the harm to this victim. Following that period, a sentence that is suspended to enable the offender to undertake a targeted program of intervention around respectful relationships and consent will promote the offender’s rehabilitation and it is appropriate for that to be carried out while the offender is in the community as it is important for him to reintegrate.

Orders

53. The orders of the Court are: (1) For the first act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act) (CAN 12402/2022), the offender is convicted and sentenced to a term of imprisonment for six months, backdated to commence on 27 April 2025 and conclude on 26 October 2025. (2) For the second act of indecency without consent, contrary to s 60(1) of the Crimes Act (SCCAN 59/2023), the offender is convicted and sentenced to a term of imprisonment for one year, backdated to commence on 15 May 2025 and conclude on 14 May 2026. (3) For the third act of indecency without consent, contrary to s 60(1) of the Crimes Act (CAN 12403/2022), the offender is convicted and sentenced to a term of imprisonment for eight months, backdated to commence on 1 May 2025 and conclude on 31 December 2025. (4) For the fourth act of indecency without consent, contrary to s 60(1) of the Crimes Act (CAN 12404/2022), the offender is convicted and sentenced to a term of imprisonment for one year, backdated to commence on 1 June 2025 and conclude on 31 May 2026. (5) For the first act of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act (CAN 12405/2022), the offender is convicted and sentenced to a term of imprisonment for two years and eight months, backdated to commence on 11 August 2025 and conclude on 10 April 2028. (6) For the second act of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act (CAN 11666/2022), the offender is convicted and sentenced a term of imprisonment for two years and eight months, backdated to commence on 27 August 2025 and conclude on 26 April 2028. (7) The total effective term of the sentence is three years. (8) Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT) and s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act), the sentences for CAN 12405/2022 and CAN 11666/2022 are suspended from 1 June 2026 and a good behaviour order is made requiring the offender to sign an undertaking to comply with the core conditions of a good behaviour order set out in s 86 of the CSA Act for the remainder of the sentence (until 26 April 2028). (9) A probation condition is imposed, requiring the offender to accept supervision by the Commissioner of ACT Corrective Services or their delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate, including to attend any program of targeted intervention directed by the delegate.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam.

Associate: Date: