R v Adhikari, Basanta

45 A Crim R 423 R v Wurramarbra (1979) 28 ALR 176; 1 A Crim R 291 Rogers v R (1989) 44 A Crim R 301 Taylor v R [2007] NSWCCA 99 Wise v R (CCA(NSW), 14 April 1989, unreported) Texts Cited: Second Reading Speech of Attorney-General in respect of the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 Category: Sentence Parties: Regina Basanta Adhikari (Offender) Representation: Counsel: Mr A Terracini (Crown) Mr M Shaw (Offender)

Judgment

Basanta Adhikari pleaded guilty on 9 November 2021 to a charge of acting with intent to pervert the course of justice, an offence under s 319 of the Crimes Act 1900. He comes before this Court for sentence.
Mr Adhikari signed four pages of Agreed Facts. Some of the facts in it are incorrect, such as the reference to "the offender's brother Basanta", [1] since Basanta is the offender. Some detail is absent. It appears an incident occurred on 27 or 28 April 2018 involving allegations of "sexual and indecent assaults" by Mr Adhikari's older brother. [2] There is no evidence that Mr Adhikari was involved in those assaults.
The complainant to those assaults, and Mr Adhikari, his brother, [3] and a co‑accused, were Nepalese Nationals. They arrived in Australia in the year prior to the incident.
Some 16 months after the incident, in August 2019, Mr Adhikari, his co-offending brother, and a co‑accused "engaged in numerous phone calls" to plan a meeting with two witnesses, who were present at the time of the sexual incident. [4] Thereafter, phone calls and texts were sent to the witnesses and a meeting occurred for the purpose of convincing the two witnesses to give statements to the police that "did not contain the truth" and "that they should not tell police everything and to tell police that nothing happened". [5]
This resulted in the two witnesses making statements to the police that were untrue. Further calls were made pursuant to the arrangement to check on the evidence of the witnesses, at least one of which was by the co‑accused.
Thereafter, the two witnesses made further statements to the police setting out another version of the events. They told the police that their earlier statements were based on instructions by Mr Adhikari, his brother, and the co-accused.
Neither set of statements were in evidence, so the details of the differences, and the significance of the untruths, are undiscoverable, even though the extent of the differences would be relevant to the extent of the perversion of justice, and therefore to penalty. This uncertainty about the detail of the changes in the witness statements encouraged by Mr Adhikari causes me to be cautious about too readily accepting a high degree of falsity or significance in the initial false statements he encouraged.
The Agreed Facts also acknowledge that Mr Adhikari tried to telephone the complainant on two or three occasions unsuccessfully. On 17 August 2019 Mr Adhikari telephoned the complainant, that is, presumably, the complainant in the sexual assault offence, and the complainant recounted that Mr Adhikari said: "Listen here, the boys called me yesterday and they are asking me what is that girl name who came over there last time. When I asked them why? They said that police came and asked them some questions." [6]
Mr Adhikari asked the complainant if she had said anything, saying he was calling to find out about the matter. She said, "[Y]es I mentioned it." [7] She was also asked for her address, and she had told Mr Adhikari: "[T]hat what they had done was not accepted here and that she reported it a long time later because she was new here and not able to think what was going on." [8]
The significance of Mr Adhikari's calls to the complainant remain elusive. It is not clear how his conversation with the complainant involves acts intending to pervert the course of justice.
Mr Adhikari was arrested on 20 August 2019. In an ERISP interview, not in evidence but summarised in the Agreed Facts, Mr Adhikari denied that the alleged sexual incident had occurred and said that the complainant would call and ask him for money, or she would "trap" them. [9] He said the complainant was his friend, and he recounted his communications with the complainant.
The offence to which Mr Adhikari pleaded guilty appears to comprise the arrangement with his brother and the co-accused to persuade two witnesses in phone calls, texts, and a meeting, to tell the police "nothing happened", which resulted in false statements by those witnesses being prepared. In a letter of apology to the Court, Mr Adhikari expressed "deep shame and remorse for my irresponsible actions in trying to protect my friends". [10]
The evidence in the sentence hearing included the Statement of Agreed Facts in Mr Adhikari's brother's case. [11] That statement indicates that a sexual incident occurred between the complainant and Mr Adhikari's brother in the bathroom of the house in the absence of Mr Adhikari. Thereafter, Mr Adhikari provided a room for the complainant, told her, "Lock the door from inside," [12] and she slept in that room with Mr Adhikari's sister.
Mr Adhikari's brother was arrested, pleaded guilty, and was sentenced for the offences of attempted sexual intercourse without consent and acting with intent to pervert the course of justice. A charge of indecent assault on the Form 1 was to be taken into account in the sentencing for the attempted sexual intercourse offence.
The offence of acting with intent to pervert the course of justice to which Mr Adhikari has pleaded guilty is a very serious offence. [13] The maximum penalty of 14 years' imprisonment indicates the level of seriousness of the offence generally. [14] The offence strikes at the heart of the system of justice and an appropriate penalty is necessary to protect the integrity of the criminal justice system. [15] However, the offence covers a wide range of conduct which can fall on a spectrum of seriousness. There is no specified standard non-parole period.
The offence by Mr Adhikari was planned and committed in company to the effect of encouraging and causing witnesses to lie to the investigating police about a serious sexual offence. It took place over a period of days or weeks. These matters add to its seriousness. I am not persuaded that the contact with his purported friend, the complainant, measurably increased the seriousness of the offence.
Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 specifies aggravating factors and some are relevant here. As mentioned, the offence was committed in company, it was part of a planned or organised criminal activity, and seems to have involved more than one act.
On the other hand, certain mitigating factors in s 21A(3) of the Act also apply. The offender had no criminal record, he is otherwise a person of good character, and for reasons to which I will return, he is unlikely to reoffend. He also has good prospects of rehabilitation, has shown remorse, and he has pleaded guilty.
The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act and include adequate punishment; recognition of harm; denunciation of the crime; accountability for the crime; deterrence, both generally, in respect of persons who might be inclined to commit such crimes, and specifically, in respect to Mr Adhikari; community protection; and the rehabilitation of Mr Adhikari. Deterrence is an important factor here, [16] particularly because the offence was planned. [17] A sentence given should operate to deter others from this type of conduct for this offence can undermine the rule of law and thereby impair societal order.
The fact that the attempt to pervert the course of justice did not succeed is of far less significance than in a case of sentencing for an attempt to commit some other substantive offence, [18] and so the lack of success does not bear upon the objective seriousness of the offence. [19] The offence comprises an act and an intention, and whether the intention - the intended result - is achieved by the act is irrelevant to the commission of the offence. [20] However, for sentencing, the absence of success in the attempt at perversion might enliven the mitigating factor in s 21A(3)(a) of there being no substantial injury, emotional harm, loss or damage caused by the offence.
A custodial sentence is often appropriate for acting to pervert the course of justice. The Court of Criminal Appeal has stated: "There can be little doubt that when the offender is the instigator of the act which is intended to compromise the integrity of the curial process and benefits or intends to benefit from the doing of the agreed act, extraordinary circumstances will be required before a custodial sentence is not appropriate. The situation may be different when the offender, although a willing participant, neither initiates or stands to benefit from the offence." [21]
In Mr Adhikari's favour, he was neither the instigator nor stood to benefit from the offence. This conclusion is unaffected by the Crown's reference to Mr Adhikari at one stage being investigated in respect to the sexual incident. In circumstances where there is no evidence of his knowledge of that investigation, and no charge let alone conviction, the evidence persuades me that, on the balance of probabilities, his motive was to protect his brother and perhaps another friend. The fact that a person is protecting a family member is relevant, [22] for greed is a less worthy motive than protection of a family member. [23] But vigilant protection of the criminal justice system is required as much against family ties as expected monetary gain. [24] And it has been said, the more serious the offence, the less significant is motive as a mitigating factor. [25]
An intended perversion of a trial or sentence is regarded as a more serious offence than influencing the grant of bail. [26] Also: "[T]he attempt to suborn a complainant, who may succumb, could very well be misconduct more serious than an attempt directed at those whose callings make it more likely that they would not only resist the attempt but report it to authority and thereby ensure that the offender is called upon to answer." [27]
Where fraud is used by the offender to attempt to damage the credibility of a complainant in sexual offences, the Court of Criminal Appeal stated in R v Egan, [28] that it was not open to regard the conduct at the low end of the range. In that case, the sexual offender was the instigator and stood to benefit.
The Court is required to take into account the impact on the victim. In the Sentencing Assessment Report, there is a statement that Mr Adhikari "demonstrated minimal understanding of the impact the offence may have had on the victim". [29] The identity of the stated "victim" intended is uncertain. In a real sense, the community is the victim where justice is perverted because the rule of law is damaged. But the victim in a related trial that is perverted by the offender's actions could be further victimised by not obtaining appropriate justice, and I have assumed that this is the victim spoken of in the sentencing report. However, the error was discovered, justice was not perverted and the victim of the sexual offence, the complainant, is not known to have been impacted adversely by Mr Adhikari's acts, at least so far as the sentencing evidence reveals. So the seriousness of the crime is not aggravated by the harm to the victim. Nor do I regard Mr Adhikari stating "that he could not comment on events he did not witness" as "[minimising] his involvement" as was stated in the report. [30]
Mr Adhikari has no criminal record apart from the offence before me for sentence. His parents live in Nepal. He was 19 years old at the time of the offence.
As this is Mr Adhikari's first offence, and he is otherwise a person of good character, he is entitled to some level of leniency. His youthfulness at the time of the offence is also a matter in his favour.
The rehabilitation of an offender is particularly important in sentencing young persons, [31] and will generally predominate over deterrence in such cases. [32] Rehabilitation is largely secured if the offender is not likely to reoffend. I find this to be the case, although Mr Adhikari did not give sworn testimony.
I accept Mr Adhikari's assertions in his letter to the Court, which is supported by other references. He spoke of his shame because of the offence and his desire to complete his studies and to do better going forward. I accept his desire and determination to do so. Mr Adhikari's educational attainments before the offence, in more recent times while on bail, and his completion of courses while on remand show that he is committed to self-improvement. References from his Education Services Coordinator and Chief Industries Officer are to the same effect.
I also take into account that Mr Adhikari recently came from Nepal prior to the offence, and I am not inclined to infer, without evidence, that the impact of the rule of law and the need to cooperate with authorities was so much a part of the culture and citizenship in Nepal as it is in Australia.
In a psychological report tendered, Mr Adhikari said, "It is a different culture here and I have never been in any trouble before. I was worried about the police too...I do [now] realise it's a serious issue". [33]
Although not expressly referred to in s 21A, a sentencing court may take into account the cultural background of an offender in passing sentence, as this is a matter which was permitted to be taken into account under the law. [34] Yet cultural background will not operate to reduce sentence by way of mitigation in every case. [35]
The offender's race is itself an irrelevant factor, as all offenders are to be sentenced according to the same principles. [36] However, the Court must take into account the personal circumstances of the offender, which may, because of his or her race, indicate a deprived background or lower standard of life. [37] The offender's nationality may mitigate the culpability of the offence, for example when the offender comes from a society where such actions are commonplace. [38] This is not to find that the rule of law is less recognised or understood in Nepal, but that the matter is uncertain, and that I should not readily assume equivalence with Australia, especially with a youthful offender.
Thus, Mr Adhikari's youth, his good record and his cultural background all indicate that the Court should not punish too harshly conduct which for other more mature members of society might warrant a lengthy prison term, especially in circumstances where the precise detail of the conduct remains uncertain.
I have considered the statistics for offences under s 319 of the Crimes Act involving a plea of guilty. The minority of cases resulted in custodial sentences, and more than half received an Intensive Correction Order. Care with the use of statistics is required. The utility of statistics is marginal as every case has unique features, and this is especially so with a s 319 offence, which covers a wide range of conduct.
After his arrest, Mr Adhikari spent 15 months in custody on remand in 2 components: 14 months and 21 days, and an additional period of 9 days claimed by his counsel, which was not challenged by the Crown. He also spent about 15 months to date on bail during which his bail conditions involved reporting three times a week.
Whilst on remand, Mr Adhikari worked in a responsible position as a Hygiene Leading Hand, managing the COVID-19 Cleaning and Sanitising Team. He received favourable reviews from those in authority. After he was released on bail, he complied with his bail conditions with exactness.
I take into account the lengthy delay before sentence: "Where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of the earlier sentence, to the circumstances that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime long after the committing of the offence calls for a considerable measure of understanding and flexibility of approach - passage of time between the offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." [39]
The rehabilitation during the delay can be such that it will result in a lesser minimum term being fixed than otherwise appropriate. [40]
The evidence contained references from a childhood friend and his sister. They indicate that Mr Adhikari was reliable, hard-working, has been favoured with good parents and has been burdened with the shame and disgrace his offence has brought to his family.
A psychological report indicating more recent problems with depression and anxiety is to a similar effect. Although Mr Adhikari's guilty plea only entitles him to a 5% discount on sentence by reason of its utilitarian value, it being somewhat late, and which discount I apply, I do not take its lateness as a reflection of diminished remorse. His contrition operates to moderate the level of penalty and I accept that the offender has provided evidence of an acceptance of responsibility for the offence.
In all of these circumstances, I regard the offence as below the middle of the range of seriousness for conduct constituting the offence.
The Court must take into account the time spent in custody for the offence for which sentence is to be passed, [41] and should backdate the sentence. [42] The Court can take into account the time spend in quasi-custody while on bail, such as where the accused attends a rehabilitation centre. [43] Restrictive accommodation requirements as conditions of bail do not necessarily amount to quasi-custody for the purpose of imposing sentence. [44] The Court may also take into account onerous bail conditions. [45]
Determining the appropriate sentence for Mr Adhikari is informed by the principle of parity and the sentencing decision made in respect of his co‑offending brother. In that case, this Court determined an indicative sentence for the perversion of justice offence of 2 years' imprisonment with a non‑parole period of 12 months.
The Court should strive for consistency and equality before the law and one tool to obtain those objectives is the principle of parity. It requires, so far as the law permits, that equal cases be treated equally, but that there should be different treatment of persons according to differences in culpability and different circumstances. [46]
There is no rule of law that co-offenders must receive the same sentence for the same offences, but the Court should strive to eliminate a justifiable sense of grievance by reason of disparity in sentencing. [47] The principles in relation to parity were re-stated by the High Court in Postiglione v R. [48]
The principle of equal justice requires that differences in sentence must be explained by the difference in the culpability or subjective circumstances of the offences, even if there is no need to compare the sentences passed for multiple offences where the accused is a co-offender only on some, but not all, offences, [49] or where the offences are not identical. [50]
Here there are certain matters that indicate Mr Adhikari's penalty should be lighter than his brother's penalty for the same offence. First, in the brother's case, the sentence was part of an aggregate sentence and effectively added to the indicative term for the attempted sexual intercourse only nine months to the aggregate head sentence and four months [51] to the non-parole period.
Secondly, although Mr Adhikari's brother was regarded as a first offender in respect of the attempted sexual intercourse, he was expressly not regarded "as a first offender in respect of the attempt to pervert". [52] Mr Adhikari is entitled to leniency as a first offender in respect of this offence for his previous good character.
Thirdly, Mr Adhikari's brother was sentenced on the basis of his admissions to being the "ringleader" [53] in the perverting the course of justice offence and was the "moving force for this crime", [54] a finding that is not urged by the Crown or available to me on the evidence in respect to Mr Adhikari. That the ringleader was his older brother tends to increase the influence on Mr Adhikari to involve himself in the offence.
Fourthly, and related to point 3, Mr Adhikari was protecting his brother, thus lacking a selfish motive, whereas in his brother's sentence, the judgment reflected that it was the brother's "liability that was being protected". [55]
Finally, Mr Adhikari was about 11 months younger than his brother, a not insignificant period for a nineteen-year-old, so Mr Adhikari's youth was a marginally stronger point in his favour compared to his brother.
In these circumstances, I conclude that the 15-month period of imprisonment on remand that was served by Mr Adhikari and the 15 months on bail thereafter, akin to a period of parole, significantly exceeds the penalty that he might have been expected to receive for the offence.
A Court must not sentence an offender to imprisonment unless it is satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate. [56]
I am satisfied that the possible alternatives to imprisonment are not appropriate for this offence, both because of the inherent seriousness of a crime against s 319, having a maximum penalty of 14 years' imprisonment as I indicated, and the nature of the crime in this case.
Had Mr Adhikari not served such a lengthy period on remand, he would likely have been held able to serve a period of imprisonment by an Intensive Correction Order. But as such an order cannot be backdated, [57] and thus were it made it would operate from today, it is an inappropriate penalty to impose.
In my view, Mr Adhikari should be sentenced to a period of 12 months' imprisonment and should be eligible for parole after six months of that term. In view of the matters mentioned, I find special circumstances, as mentioned, namely that Mr Adhikari has not previously served a period of imprisonment.
As the sentence should be backdated by reason of the time served of 15 months, there is neither any period of imprisonment nor parole left to be served.
Mr Adhikari, you may stand.
Basanta Adhikari, you are convicted of the offence of acting with intent to pervert the course of justice. You are sentenced to a term of imprisonment of 12 months, to date from 23 November 2020 and expiring on 22 November 2021. I set a non-parole period of six months, which would make you eligible for parole on 22 May 2021. As the period of the sentence has concluded, you will not have any further period of imprisonment or parole to serve in respect of the offence.

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