R v Dhankhar

OVERVIEW

1. In this matter the offender employed a common modus operandi evident in respect of each of the target victims. There are of course variations in respect of the length or number of intimate videos or images, the criminal activity evidenced by them, the acts of indecent assault or sexual intercourse, the substance administered to render them vulnerable or the period over which the victim's consciousness was impaired. In my view none of these variations is of any substantial effect in discriminating between the individual victims or the individual types of offences the subject of the jury verdicts. There will remain a need for some variation in respect of individual indicative sentences. The aggregate sentence to be imposed will need to accord with the purposes of sentencing as set out in s. 3A of the Crimes (Sentencing Procedure) Act 1999. 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows - (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
2. The aggregate sentence must properly reflect the seriousness of the offending and take into account the concept of totality. Pearce v The Queen [1998] 194 CLR 610
3. In each case the offender convinced the victim, who had responded to an advertisement on Gumtree, that he was interviewing her for a Korean language interpretation/translation job in Sydney for a genuine business that operated internationally. On each occasion the offender invited them to dinner after the interview and used a ruse to get the victims to then attend his residence, a studio apartment in World Square. There the offender drugged and indecently and sexually assaulted the victims. The exception was JL1 who he had managed to administer the drug to while having dinner.
4. The offender also made intimate recordings of the victims whilst they were unconscious or significantly affected by the intoxicating substance he had administered. None of the victims had indicated any romantic interest in the offender. In particular, HI and JL2 both told the offender that they were not interested in a relationship with him. To deter the offender YL repeatedly told him that she had a boyfriend.
5. In relation to JL1, YL and JL2 the offender commenced kissing them and persisted in doing so despite their resistance. The offender then proceeded to sexually assault them after the drug he had surreptitiously administered to them rendered them unable to offer any resistance.
6. While each of the victims was unconscious or significantly impaired, he recorded his criminal offending against each on his mobile phone or by use of a covert camera disguised as a clock/radio.
7. The individual victim was deprived of the opportunity to consent or resist and unable to recall the commission of the offences that had been committed against her.
8. All the sexual intercourse offences and most of the acts of indecency offences were only able to be prosecuted because of the discovery of the recordings he retained on various electronic devices for his future sexual gratification and because of his having maintained an Excel spreadsheet recording his interaction with each victim, their personal details, and his assessment of their vulnerability/suitability to his plans.
9. In advance of the sequence of offending, the offender had researched and obtained suitable covert recording devices, as well as the drugs that he later utilised to commit the offences, for which he obtained prescriptions from medical practitioners by falsely asserting that he had sleep problems requiring the medications to achieve sleep. I do not accept that the offender had any relevant sleeping problem requiring his personal use of the medications, even on the basis of the offender having to prove this only on the balance of probabilities for it to be taken into account in his favour.
10. I note that even had I accepted that his research and earlier obtaining of the prescription medications had been for a genuine personal health reason, in my view it would make little difference to the seriousness of the offending in circumstances where he administered a stupefying drug to young women with no knowledge as to whether the individual might be allergic to it or taking some other medication with which it would have an adverse interaction or whether it might have an adverse reaction in combination with any alcohol consumed over dinner, or in which the drug was administered.
11. That is why such medications are only available on prescription provided by trained professionals who can make an appropriate decision as to provision of the medications and the appropriate dosage levels.
12. The interpreting/translating job was fictitious, as was the business the offender purported to be employed by, Asia Partnership, and he utilised several false names (Dan Syd, Dan Taylor) and email addresses to represent himself as part of a non-existent team charged with locating and assessing an appropriate candidate for the non-existent employment by the non-existent business. To this end he would send emails to himself from one false name to another of his false names before copying it to the victim to give the appearance of a genuine team endeavour. He also created a false website for the non-existent business employer, Asia Partnership.
13. He placed at least five false job advertisements offering employment. The first covert recording device that he obtained coincided with the first of the advertisements. He created and used misleading and false email addresses. He claimed that a translation/interpretation test needed to be completed by the applicant to be assessed for the employment, and for that purpose located on the internet materials that he could forward to the victims to be translated/interpreted for the test.
14. He used the test to ingratiate himself with SC by pretending that he had a friend who he could ask to improve the quality of her test result to enhance her prospect of obtaining the non-existent job.
15. To keep track of the potential employment applicant victims and his assessment of their individual suitability he kept an Excel spreadsheet accessible on his mobile phone which recorded their names, date applied, gender, age, mobile number, email address, his physical and intellectual assessment of them, dates and times of any meeting, and what action he had taken or level of sexual success he had achieved. This was known as the KOR List (Ex F1) and it enabled him to remind himself on short notice of any applicant's details and his assessment of them or at what stage they were in his criminal scheme.
16. It commenced with entries on 1 October 2017 and continued through to entries on 19 October 2018. It records a total of 154 responses to his advertising. The first three or four entries may not have been respondents to his advertisements.
17. Of note is that there are a total of 51 male applicants for the employment opportunity and not one appears to have ever been interviewed in person. I speculate that the offender may have had difficulty in determining from Korean first names whether the applicant was male or female, and he at least needed to speak to them by telephone before recording in respect of the majority of the males the "Action" to be taken as "STOP." Five males were recorded as "MULE READY," two as "MULE USED" and three as "MULE CHK." Entry No. 83 was a male recorded as "not good for MULE" - "STOP". Entry No. 88 was a male recorded as "bad eng, not enuf for MULE" - "STOP". There was no understandable explanation of these entries in the offender's evidence at trial (see T1025 - T1026 29/3/2023) and in any event the trial was concerned with the offender's crimes against females.
18. I do not draw any adverse inference against the offender from these observations, the real point being that the offender was only interested in pursuing young, vulnerable women and not males.
19. In respect of female applicants, the offender frequently made both positive and negative references to their physical appearance, intelligence and age in assessing their vulnerability to his scheme and their desirability to him. It is apparent from an overview of the Kor list and his notes of interviews that he was only interested in young, attractive, and comparatively naïve women who did not have boyfriends and who did not ask too many questions about the details of the proposed employment which might have led them to make independent inquiry and possibly detect the falsity of the proposed employment. For example, he made a handwritten note at interview of SC that she was "stupid" and a "good target." On the Kor List he recorded in respect of; Entry 12: "fat & unattractive" - "STOP". Entry 24: "too smart/good eng." - "HOLD". Entry 32: "… sounds stupid, bad eng … no bf" - "not very pretty … low chance" - "HOLD". Entry 46: "too smart, wont prey, very confident, 6/10" - "STOP". Entry 61: "has BF" … "very cute & young, good eng, 8.5/10…" - "HOLD". Entry 65: "bad eng, sounds dumb…" … "fat, ugly, has BF" - "STOP". Entry 73: "nerdy w/ short hair, cute may be virgin" - "HOLD". Entry 79: (the victim SC) "sounds cute"…"had dinner, super hot, applied for emirates flight attendant, loves drinking & clubs" … "BASE 4" … "got angry on base 4, doesn't want to continue - close".
20. The offender used the fictitious job opportunity to manipulate the victims into being interviewed and then accepting his invitation to have dinner before deceiving them into attending his apartment. In respect of JL1 and YL he suggested there were materials he needed to show them relating to the false employment opportunity. In relation to HI and SI he manipulated them by indicating that he needed to retrieve his car keys from his apartment, and in respect of JL2 that from his apartment she would be able to see the Opera House (which was not possible as the view was over the CBD to the west).
21. The offender's conduct was premeditated, elaborately executed, manipulative and highly predatory and his conduct before, during and after the offending demonstrates that he acted to obtain present and future sexual gratification regardless of the wishes of any victim and in complete and callous disregard for the physical and mental wellbeing of each victim.
22. His purpose was to indulge his attraction to and interest in young Korean women present in Australia in the absence of their ordinary and personal support structures, such as family and friends, and hence vulnerable so that he could victimise them by drugging them to allow him to have sexual intercourse and/or indecently assault them in circumstances where he knew they were not consenting, and so that intimate images by way of video recordings of his offending could be made without their knowledge and retained on his various electronic devices for his ongoing sexual gratification.
23. The offender gave evidence denying the administration of any intoxicating substance to any of the victims, and in relation to the indecent assault and sexual intercourse offences and the intimate video recordings the primary issue at trial was consent. The offender's evidence was that each victim consented to his conduct and to the video recording of it.
24. His evidence was given in the context of an overwhelming prosecution case based on the evidence of the individual victim, the sophisticated and easily demonstrated deceptive scheme, and the video recordings of the offending and notes on the Excel spreadsheet maintained and updated by him, recording his assessment of their vulnerability and attractiveness to him as well as recording the obtaining of sexual intercourse as reaching "Base 4". (Part of a decades old American baseball analogy code for expressing the degree of success in sexual activity, used particularly by juvenile males.) as well as the location of wine and Powerade adulterated by "date rape" prescription drugs (Rohypnol, Hypnodorm and/or Zolpidem) prescribed for him and located in his fridge that had been provided to victims. He also had some of these drugs stored at work.
25. In those circumstances it was predictable and inevitable, in my view, that the jury rejected his defence and convicted him of each of the offences. Ms Mitchell, counsel for the accused, did everything she could to present his case forcefully and properly but she had little to work with.
26. It is convenient at this point to make a personal observation that I would not normally make until later in these "Reasons on Sentence." The observation is made in the circumstance that as the presiding judge at trial I have heard the evidence of each witness called, and read, viewed, and considered every exhibit tendered in the prosecution and defence cases. The jury must have rejected his evidence. I have formed the opinion, consistent with the jury's determination, that the offender cannot be accepted as a witness of truth, and I would not accept as truthful anything said by him in evidence which is in contest unless it accords clearly with commonsense or is supported by acceptable independent evidence that is not simply the repetition by others of things asserted by him but not personally witnessed by them.

OBJECTIVE SERIOUSNESS

1. The prosecution has submitted that s. 21A(2)(m) applies. However, that section applies where "the offence involved multiple victims or a series of criminal acts." (Emphasis added.) In my view this section is not relevant as it only applies where there is a single charge or count that involves "multiple victims" or a "series of criminal acts" rather than, as here, multiple victims in respect of which there are multiple single counts and no single count that charges "a series of criminal acts" even though there was a series of criminal acts committed against each of the five victims.
2. Each of these offences was committed as part of a "planned and organised criminal activity" to target young and vulnerable South Korean women, so in respect of each offence, s. 21A(2)(n) Crimes (Sentencing Procedure) Act is relevant to take into account as a statutory aggravating factor. The planning was extensive and of a highly sophisticated nature. The object of the plan was to identify young, vulnerable South Korean women present in Australia on short term work/holiday/education visas, seeking to support themselves by finding work, and to use these circumstances to identify suitable targets and induce them to meet with him in circumstances where he was able to administer a stupefying drug to render them unconscious or impaired to the extent that he could assault them indecently and/or sexually without them being able to consent or resist or to have knowledge of his grossly predatory and offensive conduct.
3. In respect of each offence, the offender knew that the victim was not consenting rather than being reckless as to consent, as he had administered the intoxicating substance without their knowledge to achieve the result that the victim would be unconscious or so substantially impaired that he could conduct himself as he wished and record his offending without any resistance or risk of detection.
4. In these circumstances, each individual offence against each victim of whatever type must be regarded as objectively very serious.

Administer Intoxicating Substance to Enable Sexual Intercourse Without Consent - Counts 1, 19, 22, 25, 30 & 36

S. 38(a) - Maximum penalty 25 years' imprisonment

1. The seriousness of this type of offence as determined by the legislature is indicated by the maximum penalty provided of 25 years' imprisonment. The only higher maximum sentence provided for any offence contrary to NSW legislation is life imprisonment.
2. In the circumstances of this matter, I am unable to decern any valid reason as to why there should be any distinction on sentence between any one occasion of administering an intoxicating substance to one victim and doing so in respect of any other victim. Each of these offences must be regarded as very serious for the reasons stated above. While the charges refer to the offender administering the intoxicating substance for the purpose of committing a serious offence of having sexual intercourse without consent, which attracts a maximum sentence of 14 years' imprisonment, it is also relevant that he did so to enable him to take intimate images of his criminal conduct in respect of each victim without them knowing, which attracts a maximum sentence of 3 years. Also relevant is that he administered the intoxicating substances not only so that he could commit those offences but to enable him to do so without detection because the individual victim would have no memory of what he had done to them, and accordingly his conduct would go undetected and unreported. This is highlighted by the fact that he was able to commit offences against JL1 on two entirely separate occasions (25/26 January 2018 and 29 January 2018) because she had no memory of what had occurred on the first occasion.
3. It has been submitted on behalf of the offender that none of the victims suffered any physical injury because of the offending against them. The absence of what would be an aggravating factor is not a mitigating feature. Bravo v R [2015] NSWCCA 302, at [45]; GW v R [2018] NSWCCA 79, at [31] to [34]. If the offender had inflicted physical injuries on any of the victims, he would have committed further offences or offences of essentially the same nature with an aggravating circumstance, such as s 61J(2)(a) or (b1) of the Crimes Act which carry a maximum penalty of 25 years with a SNPP of 10 years. In any event physical violence, beyond the sexual offending itself, and possible injury were not required because he had rendered the victim incapable of resistance.

Sexual Intercourse Without Consent Knowing She was Not Consenting - Counts 2, 4, 6, 12, 14, 16, 21, 23, 26, 28, 31, 35 & 38

S. 61I - Maximum penalty 14 years' imprisonment with a SNPP of 7 years.

1. The offender knew that each victim was not consenting and was aware that the drug administered by him had rendered them unconscious or at least substantially impaired. He had no prior significant personal familiarity or sexual relationship with any of the victims. He exposed each to the risk of pregnancy or transmission of a sexually transmitted disease in the absence of use of a condom. Each of the recordings does not necessarily record all of the acts or the full duration of any offending act.
2. The legislation does not make any distinction between any of the different acts of sexual intercourse within the definition. If there is any distinction in seriousness it is a matter for the sentencing judge to determine on the facts. There are thirteen offences contrary to s. 61I of which the offender has been convicted.
3. While it might be preferable for victims to have some input on this issue it is inevitably a matter for the sentencing judge to make a determination in respect of.
4. In this matter, having considered the matter as a whole, I am prepared to make some distinction between the s. 61I offences even though I regard all of them, in the circumstances, as very serious. I will treat digital penetration of the genitalia as marginally less serious than penile/vaginal intercourse. I will treat penile/vaginal intercourse with a condom as marginally less serious than such intercourse without a condom. In respect of the single count involving fellatio, I will treat that as equally serious as penile/vaginal intercourse without a condom.
5. In relation to each of these matters, although I will refer to the duration of the act, I do not regard variations based on the length of the recording as particularly significant as the victim was unconscious and the whole of the conduct may not have been recorded. I believe that the individual victim is likely to be more concerned with the fact of the act rather than the duration.

Count 2 concerned digital penetration of the victim's (JL1) genitalia.

1. The video indicates penetration for at least a period of 50 seconds. The victim, in what was probably a reflex action while substantially impaired, attempted to remove his hand but he persisted. Above the mid-range of objective seriousness.

Count 4 concerned penile penetration of the victim's (JL1) genitalia.

1. Offender not wearing a condom. Recording of 31 seconds in duration. Towards the top-range of objective seriousness.

Count 6 concerned penile penetration of the victim's (JL1) genitalia.

1. Offender not wearing a condom. Recording of 1 minute and 28 seconds in duration. Towards the top-range of objective seriousness.

Count 12 concerned digital penetration of the victim's (JL1) genitalia.

1. The victim, in what was probably a reflex action while substantially impaired, made sounds of apparent distress and attempted to block his hand but he persisted. Recording of 2 minutes and 57 seconds duration. Above the mid-range of objective seriousness.

Count 14 concerned fellatio of the victim, that is inserting his penis into her mouth (JL1).

1. The offender, not wearing a condom, inserts his penis between the victim's lips and using his hand, endeavours to open her mouth to allow further penetration. Recording of 57 seconds in duration. Towards the top-range of objective seriousness.

Count 16 concerned penile penetration of the victim's (JL1) genitalia.

1. Not wearing a condom. Victim makes noises of distress. Continues after she unconsciously tries to stop him. Recording of 1 minute and 7 seconds in duration. Towards the top-range of objective seriousness.

Count 21 concerned penile penetration of the victim's (JL1) genitalia.

1. The second series of offences against her. Towards the top-range of objective seriousness.

Count 23 concerned penile penetration of the victim's (SC) genitalia.

1. Given the state of the victim, it is not possible to establish the duration of the offending. Towards the top-range of objective seriousness.

Count 26 concerned penile penetration of the victim's (YL) genitalia.

1. The victim made significant sounds of distress. Recording is 40 seconds in duration. Towards the top-range of objective seriousness.

Count 28 concerned penile penetration of the victim's (YL) genitalia.

1. The victim made significant sounds of distress. The victim was naked and the offender was not wearing a condom and was using KY jelly. Recording is 27 seconds in duration. Towards the top-range of objective seriousness.

Count 31 concerned penile penetration of the victim's (HI) genitalia.

1. The offender continues to engage in sexual contact even when the victim moves away from him. When she sits up, he pushes her back down. Facilitated with KY jelly. Recording is 3 minutes in duration. Above the mid-range of objective seriousness.

Count 35 concerned penile penetration of the victim's (HI) genitalia.

1. Above the mid-range of objective seriousness.

Count 38 concerned penile penetration of the victim's (JL2) genitalia.

1. The offending commenced while the victim was unconscious and he continued when she recovered and he was not using a condom. There is no evidence of duration. Towards the top-range of objective seriousness.

Assault and at the time Commit an Act of Indecency - Counts 8, 20 & 37

S 61L - Maximum penalty 5 years' imprisonment

1. Count 8 concerned touching the victim's (JL1) buttocks and genitals. The offender, despite the naked victim making noises of distress, touches and continues to touch her buttocks and genitals. Recording is of 50 seconds. Mid-range of objective seriousness.
2. Count 20 concerned kissing the victim (JL1) The offender insisted that the victim dance with him and repeatedly tried to kiss her and did so despite her protests. Upper end of the low range of objective seriousness.
3. Count 37 concerned kissing the victim (JL2) The offender insisted that the victim dance with him and repeatedly tried to kiss her and did so despite her protests. Upper end of the low range of objective seriousness

Intentional Recording of Intimate Images Without Consent - Counts 3, 5, 7, 9, 10, 11, 13, 15, 17, 18, 24, 27, 29, 32, 33, 34, & 39

S 91 P(1) - Maximum penalty 3 years' imprisonment

1. I accept beyond reasonable doubt that all the recordings were made without the consent or knowledge of the individual victim, recorded in the circumstance that they had been rendered unconscious or impaired by the offender's surreptitious administration of a sedating drug, and that each of the recordings was made for his present and future sexual gratification. In addition, he retained the recordings on his various electronic devices with the individual victim's name attached to the digital files. Count 3 - Recording of digital/vaginal penetration of 50 second length. Stored in a digital file with the victim's name as label. Victim naked. Victim's face also shown. Close-up recording of the victim's genitals. Upper end of the range of objective seriousness. Count 5 - Recording of penile/vaginal intercourse of 31 seconds in length. Stored in a digital file with the victim's name as label. Victim naked. Victim's face also shown. Close-up recording of the accused's penis and victim's genitals being penetrated. Upper end of the range of objective seriousness. Count 7 - Recording of penile/vaginal intercourse of 1 minute and 28 seconds in length. Stored in a digital file with the victim's name as label. Victim naked. Victim's face also shown. Close-up recording of the accused's penis and victim's genitals being penetrated. Upper end of the range of objective seriousness. Count 9 - Recording of offender indecently assaulting naked victim by touching her buttocks and genitalia of 50 seconds in length. Upper end of the range of objective seriousness. Count 10 - Recording of victim's left profile, neck and shoulder, as well as displaced left bra cup. Approximately 1 second in length. Low-end of objective seriousness. Count 11 - Recording of naked victim and showing offender's erect penis. Approximately 42 seconds in length. Mid-range of objective seriousness. Count 13 - Recording of offender digitally penetrating naked victim's genitalia. Approximately 2 minutes 57 seconds in length. Upper end of the range of objective seriousness. Count 15 - Recording of offender inserting his penis into victim's mouth. Approximately 57 seconds in length. Upper end of the range of objective seriousness. Count 17 - Recording of offender engaging in penile/vaginal intercourse with naked victim. Approximately 1 minute and 7 seconds in length. Upper end of the range of objective seriousness. Count 18 - Recording of naked victim and offender's erect penis. Mid-range of objective seriousness. Count 24 - Recording of victim lying naked on bed, covers mostly removed. Approximately 16 seconds in length. Mid-range of objective seriousness. Count 27 - Recording of offender engaging in penile/vaginal intercourse with naked victim. Sounds of distress. Approximately 40 seconds in length. Upper end of the range of objective seriousness. Count 29 - Recording of offender engaging in penile/vaginal intercourse with naked victim. Approximately 27 seconds in length. Upper end of the range of objective seriousness. Count 32 - Recording of offender engaging in penile/vaginal intercourse with partially clothed victim. Approximately 3 minutes in length. Upper end of the range of objective seriousness. Count 33 - Recording of victim and offender naked on bed. Approximately 3 minutes in length. Mid-range of objective seriousness. Count 34 - Recording of victim and offender naked on bed. Approximately 3 minutes in length. Mid-range of objective seriousness. Count 39 - Recording of victim naked from the waist down and the offender touching her intimately. Approximately 10 minutes in length. Upper end of the range of objective seriousness.

VICTIM IMPACT STATEMENTS

1. Victim Impact Statements were provided by SC, YL and HI.
2. SC outlines having been open, trusting and socially outgoing prior to these events but now feeling isolated and non-trusting to the extent that she avoids face to face interactions.
3. YL refers to now having racist and physical reactions to being in the presence of dark-skinned people to the extent that she now avoids them at work, in public and in her educational endeavours. They now make her feel anxious and fearful. "He has inflicted wounds on my soul." It has adversely affected her relationship with her parents as her parents come from a different generation where cultural differences were not understanding of the plight of victims and she consequently feels unsupported. "Even as I write this, my whole body trembles, and I know I will surely be haunted by nightmares…."
4. HL refers to now being suspicious of everyone and mentally unstable with depression, crying and having suicidal thoughts despite the assistance of therapists and counsellors. She specifically refers to the trauma of having to recall the events she had endeavoured to remove from her memory for the purpose of giving evidence at trial.
5. Although there are no Victim Impact Statements from JL1 or JL2 this is hardly necessary. The courts have long recognised the significant and continuing nature of the serious adverse effects that offending of this nature has on victims, and that those effects will potentially continue for a significant time, if not for the whole of the victim's life. All the matters referred to by the victims can be reasonably anticipated as the tragic and ordinary consequences for victims and it is for that reason that significant penalties are provided by the legislation.
6. Fortunately, the prosecution had the commonsense to endeavour to reduce the potentially adverse effects the investigation or trial might have on each of the victims by not showing any victim any of the offensive recordings the offender had made of them or his physical conduct against them. I have no doubt that if any of the victims was to view what he had recorded of his offending against them their mental health would be potentially far more adversely affected than it has been. Notwithstanding this protective commonsense decision by the prosecution, each of the victims will be aware not only of the nature of the sexual offending against them but the fact that it has been permanently recorded and of necessity the recordings viewed by investigating and prosecuting officers, defence personnel, the accused, the jury and court personnel. This must be of serious concern to a victim, even though they would appreciate that it is a necessary consequence of the offences being prosecuted.
7. Each of the victims will be legitimately concerned by the prospect as to other persons that may have had access to viewing the recordings of them, even though it is unknown if there are any such persons. In addition, they will continue to live in fear that there can be no guarantee that the video recordings will not at some future time appear to their embarrassment on the internet. While there is no evidence that the offender distributed any of the recordings it is known that on his mobile phone, he had the application "MEGA." Mega is an application that provides storage through the "Cloud" of digital files in an encrypted format, and the offender had an account with "MEGA." One of the files which became an exhibit had a file path which included as the source or final destination "MEGA." Any file so stored would be accessible from anywhere in the world with the internet and accessible to anyone that had the appropriate password for the stored account.
8. It has been raised as a submission in his favour on sentence that he provided instructions that facilitated the trial being conducted without the victims being required to view the video of his offending against them. While there is no evidence of these instructions the assertion is consistent with the manner in which the trial was conducted. However, had there been an attempt in cross-examination to adopt this course there would have no doubt been an objection on the basis of R v TA [2003] NSWCCA 191 which had held that there was no basis for accepting that a victim who had been unconscious at the time of the conduct was in any better position than someone who later viewed the video recording of giving evidence as to whether it indicated consent or not. In addition, at Paragraph 11 "… questions involving the complainant interpreting her own conduct was, in my opinion, unduly harassing, offensive and oppressive within s 41(1)(b) of the Act". Spigleman CJ, Dowd and Adams J agreeing.
9. In my view the course adopted was simply an example of the application of commonsense to avoid what would have no doubt been a highly inflammatory and adverse course for the defence to have adopted in front of a jury, where when the first of the videos had been shown to them, there was a very strong physical and verbal response by several members despite having been warned before and during empanelment that they would of necessity have to view confrontational pornographic videos during the trial.

SUBJECTIVE MATTERS

1. The offender did not give evidence on sentence.
2. Before the Court in respect of subjective matters is the following material:

• NSW Court History Convictions (as of 27/9/2023).
• NSW Dept of Corrective Services Conviction, Sentences and Appeals Report (as of 14/11/2023).
• Sentencing Assessment Report under the hand of Chris Moellmer dated 28 July 2023; Oral evidence on sentence on 17 November 2023.
• Sentencing Assessment Report Psychology Consultation under the hand of Lindsay Hassock, Clinical Psychologist (prepared prior to 28 July 2023).
• Case Note report of NSW Corrective Services of 2 November 2023
• Quay Appointments Confidential Candidate Reference Check re Offender (9 April 2016 to December 2017).
• Harita Dhankhar nee Dalal CV (1997 to 2011).
• Schedule of Travel Movements of Harita Dhankhar nee Dalal (9 May 2009 to 20 November 2018).
• Patient Health Summary - Sydney Premier Medical & Health Centre (23 November 2018).
• Report of Dr Andrew Kim re offender, Sydney Gut Clinic, gastroenterologist and hepatologist dated 29 March 2022.
• Justice Health Drug and Alcohol report re offender for Corrective Services on admission on 24 October 2018.
• Affidavits of Harita Dhankhar nee Dalal dated 19 July 2019, 13 November 2023 with Annexures A to N.
• Affidavits of Balesh Dhankhar dated 15 September 2022, 28 February 2023.
• Affidavit of Det Sergeant Katrina Gyde dated 16 November 2023.
• Statement of Witness - Mika KOBOYASHI - dated 14 May 2019.
• Statement of Witness - Jung A LEE - dated 16 February 2023 and documentation regarding a Statutory Declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application.
• Psychiatric Reports of Dr R. Pulley dated 12 November 2023; 16 August 2024; Oral evidence on 30 August 2024.
• Reference letter of Rajesh Dhankhar (Offender's brother) dated 31 October 2023.
• Reference letter of Surinder Singh (Offender's paternal uncle) dated 31 October 2023.
• Reference letter of Naresh Sheoran (Offender's sister-in-law) dated 7 November 2023.
• Reference letters of Mahabir Singh (Offender's paternal uncle) dated 31 October 2023; 13 July 2024.
• Reference letters of Ajit Singh Dhankhar (Offender's father) dated 31 October 2023; 13 November 2023; 14 July 2024
• Reference letter of Dr Poonam Sharma (Offender's friend) dated 2 November 2023.
• Reference letter of Devang Jesani (Offender's friend) dated 9 November 2023.
• Reference letter of Krthikeyan Subremanian (Offender's friend) dated 2 November 2023.
• Reference letter of Leah Briers (Offender's friend) dated 13 November 2023.
• Reference letter of Appu Venugopal (Offender's friend) dated 13 November 2023.
• Affidavit of Ms Rima Dabliz (Offender's solicitor) dated 29 August 2024.
• Offender's Inmate Application and approval for Special Management Area Placement due to fear from 24 April 2024 and associated documentation.
• Witness Statement of Hai Vo dated 12 November 2024; Oral evidence on 30 August 2024.
• Witness Statement of Paul Chester 28 October 2024: Oral evidence on 30 August 2024.

1. Subjective matters are drawn from that material. The offender does not have a problem with alcohol or consume any prohibited drug. He has no previous criminal convictions.
2. Balesh Dhankhar was born in India on 23 January 1980 and was 38 years of age at the time of this first offending. He is now 45 years of age. The offender was educated in India and came to Australia in July 2006 on a student visa. He holds a Bachelor of Computer Application (2005), Master of Commercial Software Engineering Management (2005) and a Master of Information Technology Management (2008). He informed Dr Pulley that he had a Diploma in filmmaking and while completing his postgraduate studies he had worked in different roles in information technology, media and journalism.
3. He has one younger brother, and his parents and other family continue to reside in India. His father worked for the Air Force for 15 years and in the early period the family moved every 6 months to two years. He had deep respect for his father but also a lack of emotional connection. His father was a strict disciplinarian who used a strap to reprimand him. His father in his second reference acknowledges this but there is no claim or evidence that this caused injury or was any more significant than common chastisement of a child. He felt emotionally neglected by his mother, who had been unable to care for him during one episode of illness as a child.
4. When he was about 8 years of age there was an incident when the family was visiting the ancestral village and there was a dispute between his father and two paternal uncles when the family was locked in a room, and the paternal uncles were trying to kill them in some unspecified way as they wanted his father to surrender to them the whole of his government salary before they were saved by a neighbour. In his second consultation with Dr Pulley, he revised this event to being when he was 5 or 6 years of age. This appears to be the major event from which Dr Pulley opined that the offender suffers from post-traumatic stress disorder. The event is confirmed in the letters from Ajit Dhankhar, his father, dated 13 November 2023 and 14 July 2024 and Mahabir Singh, an uncle, in his letter of 13 July 2024. While there is a lack of detail of this event and it is difficult to assess the accuracy of the reports and the basis on which such an apocryphal event may have occurred, there is at least support for an event from the offender's father and uncle. Whether or not this has become exaggerated in the mind of a then 5- or 6-year-old over the intervening period of more than 30 years cannot, in the absence of sworn evidence, be determined. However, Dr Pulley is a psychiatric expert so I will accept his opinion.
5. His upbringing was otherwise uneventful, with the offender not suffering from any significant physical or mental health problems except the unidentified illness referred to above. Dr Pulley found on consultation on 22 July 2024 that there was no evidence of the offender suffering from thought disorder, delusions or hallucinations. However, there is no evidence that PTSD had any role to play in the offender committing the subject offences over a significant period of time, particularly including advance planning. PTSD, even if present, does not reduce the offender's moral culpability.

• (complex) post-traumatic stress disorder;
• Bipolar disorder Type II;
• General personality disorder, avoidant attachment style;
• Probable paraphilic disorder (somnophilia).

1. Dr Pulley opined as follows (12 November 2023 at 65, 66, 68 and 72): (At 65) In my opinion there is a strong nexus between Mr Dhankhar's mental conditions and the offending behaviour. A core aspect of Mr Dhankhar's condition contributing to the offending behaviour is a chronic sense of emptiness and unhappiness and a sense of detachment and estrangement from others including his wife. This these (sic) symptoms arise from his feelings of detachment and estrangement and sense of emptiness, which in turn are features of PTSD (especially in the case of complex PTSD) and avoidant attachment style. This (sic) in this context he developed a very highly maladaptive coping strategy of attempting to address unmet needs for intimacy with casual sexual encounters. (At 66) The further aspect of Mr Dhankhar's mental conditions that contributed to the sexual offending is high libido, a sense of entitlement, heightened in engagement in goal-directed activities and heightened impulsivity arising in the context of hypomanic episodes of bipolar disorder Type II. These features had the effect of greatly increasing his sex drive, coupled with heightened energy and motivation to engage in problematic behaviour, as well a heightened sense of entitlement that would contribute to self-justification of his problematic sexual behaviour, and a reduction in inhibition of problematic impulses caused be (sic) impulsivity. (At 68) Alcohol use is a further factor contributing to the offending behaviour as it has an effect of reducing moral inhibitions to such behaviour. As described above, Mr Dhankhar's underlying mental conditions strongly contributed to problematic alcohol use. (At 69) Somnophilia, if present, represents a highly significant contributing factor to the offending behaviour, in that it would provide the drive to engage in the type of offences described in the Crown Case Statement. This drive would typically be inhibited by factors such a (sic) sense of morality, empathy, and fear of punishment. These inhibitory factors would be undermined by his other mental health conditions as outlined in the preceding paragraphs. (Emphasis added) (At 72) Furthermore, Mr Dhankhar suffers from mental illness, specifically bipolar disorder and complex post-traumatic stress disorder that may contribute to the offending behaviour. It is possible that Mr Dhankhar has somnophilia, a deviant sexual preference for sexual activity with an unconscious partner. (Emphasis added)
2. Dr Pulley's diagnosis is, as emphasised above, littered with equivocal terms such as "if present," "may contribute" and "possible."
3. In cross-examination Dr Pulley accepted that the offender suffering from somnophilia would not have affected his ability to understand the wrongfulness of his conduct. (T16 30/08/24) In addition, the offender does not accept that he is a somnophiliac as he denies all the offences and having somnophilia, despite the evidence at trial in respect of the victims and including the location on his electronic devices of such similar material obtained by him over the internet not involving any of the victims. Dr Pulley also accepted that the offender's diagnosed bipolar disorder was not connected to the course of deception that he engaged in or to his drugging of the victims and that the fact that his course of deception continued for almost a year would count against the offending occurring as part of an episode of hypermanic behaviour. (T16/17 30/08/24). There is on the evidence at trial and on sentence no evidence that the offender has any problem or has ever had any problem with the consumption of alcohol. There is no acceptable evidence that he has suffered from hypermanic episodes. Indeed, he appears to have been highly regarded in the workplace and variations in mood or heightened activity not observed.

Remorse, Contrition, Rehabilitation and Risk of Reoffending

1. The counts were all defended and each victim required to attend and be subject to the stress of being challenged as to their recollection, to the extent they had any recollection of the events. The offender continues to deny the commission of all the offences.
2. To Dr Pulley, the offender referred to the offences as "affairs." "He said that he regretted these affairs because he knew they were immoral as he was cheating on his wife, and it was extramarital sex." (Para 27 P5 Report of 12/11/2023)
3. Ms Moellmer in the Sentence Assessment Report of 28 July 2023 records under the heading "Attitudes" that:

• "Mr Dhankhar consistently denied all the subject offences, admitting only to deceiving the victims by placing false advertisements.
• Denying that he had administered sedatives and claiming that all sexual acts were consensual and filmed with consent of the victims, Mr Dhankhar referred to the offences as "extramarital affairs" which he described as "immoral."
• Mr Dhankhar stated that he "did not drug anyone at any time," reporting that the sedative Zolpidem was prescribed to him by a doctor as he has trouble sleeping, and the drinks that were found to contain the sedative were for his personal use.
• While discussing the offences, Mr Dhankhar stated "I paid them for some services though," when asked to clarify this statement, said "I sent them documents to be translated and would pay them when I sent them back."

1. Mr Dhankhar admitted that he is "infatuated" with Korean women, although to Dr Pulley he "denied having a "fetish" for Korean women, although he found them to be attractive." (Para 45 P7 Report of 12/11/2023)
2. Under the heading of "Insight into impact of offending" it is recorded:

• "Failing to display any emotional response, Mr Dhankhar stated that it was "beside the point if I had sex with them or not" and that there is a "difference in how I interpret consent, to how the law sees consent."
• Acknowledging the elaborate ruse, Mr Dhankhar admitted that at no time did he attempt to be truthful with the victims regarding his true purpose for their meetings.
• Alleging that "no one said no or told me to stop," Mr Dhankhar claimed that if a victim did say no, then he immediately stopped.
• Mr Dhankhar significantly minimised his actions and displayed no insight into his behaviour.
• Although Mr Dhankhar expressed that he is "deeply sorry" that he deceived the victims by placing advertisements for fictitious employment, he failed to show any contrition for his actions or any empathy for the victims, past this point."

1. As to any intervention, "he does not feel that he has any risk factors to be addressed."
2. Ms Moellmer assessed him as a medium risk of reoffending.
3. Lindsay Hassock, Clinical Psychologist, at John Moroney Correctional Centre" reported that the offender had an average risk of reoffending and a "Deviant Sexual Preference: The nature of Mr Dhankhar's offending in conjunction with pornographic content found on his computers indicate a preference for sexual acts with unconscious Asian women."
4. This was the tendency that the prosecution sought that the jury would infer from the evidence, and which I have no doubt the jury did infer.
5. It is impossible to find in view of the evidence and the reports in this matter that the offender has a good prospect of rehabilitation and of not reoffending. Indeed, in the light of the offender having defended this matter and his continuing denial and inability to understand the seriousness of his conduct there appears to be a very poor prospect of rehabilitation and a significant risk of his reoffending while he continues to believe that his concept of consent, whatever in particular that is, is the basis on which he can act.
6. Rehabilitation is only likely in the circumstance where he admits the offending and recognizes that he requires treatment and/or counselling and is willing to actively participate and does so. In my view, until such time he will represent a significant risk to women in the community. His increasing age may be a significant factor in diminishing the risk he presents in circumstances where he has demonstrated no empathy for any of the victims or acknowledged what he did to them, the seriousness of what he did to them or the inevitable, serious, and long-term impacts of his conduct on them.
7. It is clear that Mr Dhankhar has no remorse and has not expressed contrition for his offending. His only expressed concern relates to his assertion that what he did constitutes "having affairs" which is "immoral" in the context of being married. That appears to indicate that he only acknowledges a potential impact on his wife of consensual misconduct consistent with the defence case.

Conditions of Custody

1. I accept that Mr Dhankhar has been disadvantaged by being in custody at a time when lockdowns have been necessary because of the presence of Covid in the community. Ms Dabliz, solicitor for the offender, in her affidavit of 29 August 2024, states that Mr Dhankar has informed her that there have been 48 days of lockdown in the period between 19 April 2024 and 14 August 2024. In addition, Mr Dhankhar has asked to be placed and has been placed in protection. Although there is no evidence as to the conditions under which he is held, I accept that they will be more restrictive than if he was held in the general prison population. However, he can make application to be returned to the general population at any time. Being in protection at least has the advantage of being in a safer and less stressful environment than the general population affords a prisoner. While offenders who have committed sexual offences may attract undue attention from other prisoners, this is generally in respect of offenders who have committed sexual offences against children rather than, as here, adults.

Assistance

1. Ms Mitchell has submitted on behalf of the offender that his sentence should be reduced to reflect assistance during the conduct of the trial because of the trial being shortened by "Agreed Facts" pursuant to s. 191 of the Evidence Act 1995 which obviated the need to prove those facts.
2. There were a number of "Agreed Facts" documents tendered during the trial as follows: Exhibit B6 - Various relevant items located on 22 October 2023 on execution of a search warrant at his premises. Zolpidem tablets, condoms, wine adulterated with Zolpidem, Powerade adulterated with Zolpidem & Rohypnol. Exhibit D6 - That the offender created and posted Gumtree advertisements for Korean translators on 12 December 2017, 28 January 2018, 11 August 2018 and 11 October 2018 and that stored on his mobile were relevant Gumtree passwords and email addresses. That no one else had access to alter the advertisements. Exhibit D9 & D10 - The offender created and solely operated various email addresses and a website for Asia Pacific and was the subscriber of certain mobile phone numbers and SIM cards. Exhibit E3 - Asia Partnership ceased operating in 2016 and had not used or employed interpreters. He was employed at Asia Partnership between 2006 and 2009. Exhibit F3 - That he solely created and maintained the Excel spreadsheet on his mobile phone entitled "Kor List" and accessed it between 15 and 19 October 2023 on at least 313 occasions and stored certain relevant documents on it. Exhibit F4 - Banking records relevant to proving dates and places he met with various victims. Exhibit F5 - Email records as to the use by him of various email addresses in various names to email himself in various other names used by him. Exhibit K11 - The location of various video files and photographs of victim YL on his computer labelled with her name.
3. As can be seen from the list above, the Agreed Fact exhibits were in the most part extractions or summaries from other readily provable records as well as concessions that he was the person responsible for their existence or creation. These matters could have readily been proven but the "Agreed Facts" meant that the prosecution did not have to call the witnesses that might otherwise have been required to prove those facts. There is no doubt that this did assist in shortening the duration of the trial. That shortening was to the advantage of the prosecution, the defence and the court. I have taken that fact into account in determining sentence.
4. The sentence to be imposed must reflect the objective seriousness of the offending as well as providing for both specific and general deterrence. The sentence must also reflect that there are five unrelated victims with the offending occurring over a nine-month period on six unrelated occasions, excepting that JL1 was a victim on two separate occasions.
5. This was an egregious sequence of planned predatory conduct against five unrelated young and vulnerable women over a significant period.
6. While some degree of concurrency is appropriate in respect of the sentences in respect of any single victim, the aggregate sentence must reflect that fact.

INDICATIVE SENTENCES Count 1 - 14 years' imprisonment Count 2 - 7 years' imprisonment with a non-parole period of 5 years, 3 months Count 3 - 2 years, 6 months' imprisonment Count 4 - 9 years with a non-parole period of 6 years, 9 months Count 5 - 2 years, 9 months' imprisonment Count 6 - 9 years with a non-parole period of 6 years, 9 months Count 7 - 2 years, 9 months' imprisonment Count 8 - 2 years' imprisonment Count 9 - 2 years, 6 months' imprisonment Count 10 - 3 months' imprisonment Count 11 - 2 years' imprisonment Count 12 - 7 years, 6 months with a non-parole period of 5 years, 7 ½ months Count 13 - 2 years, 6 months' imprisonment Count 14 - 9 years with a non-parole period of 6 years, 9 months Count 15 - 2 years, 6 months' imprisonment Count 16 - 9 years with a non-parole period of 6 years, 9 months Count 17 - 2 years, 6 months' imprisonment Count 18 - 2 years' imprisonment Count 19 - 14 years' imprisonment Count 20 - 1 year imprisonment Count 21 - 8 years, 6 months with a non-parole period of 6 years and 4 ½ months Count 22 - 14 years' imprisonment Count 23 - 8 years, 6 months with a non-parole period of 6 years and 4 ½ months Count 24 - 2 years' imprisonment Count 25 - 14 years' imprisonment Count 26 - 9 years with a non-parole period of 6 years, 9 months Count 27 - 2 years, 6 months' imprisonment Count 28 - 9 years with a non-parole period of 6 years, 9 months Count 29 - 2 years, 6 months' imprisonment Count 30 - 14 years' imprisonment Count 31 - 8 years' imprisonment with a non-parole period of 6 years Count 32 - 2 years, 6 months' imprisonment Count 33 - 2 years' imprisonment Count 34 - 2 years, 6 months' imprisonment Count 35 - 8 years' imprisonment with a non-parole period of 6 years Count 36 - 14 years' imprisonment Count 37 - 1 year imprisonment Count 38 - 9 years with a non-parole period of 6 years, 9 months Count 39 - 2 years, 6 months' imprisonment

SPECIAL CIRCUMSTANCES

1. It has been submitted on behalf of the offender that the Court should find "special circumstances" warranting a "significant" variation in the statutory relationship (75% to 25%) between the non-parole period and the balance of term.
2. The following matters are advanced as supporting such a finding: a.) This is Mr Dhankhar's first time in custody; b.) His experience of custody will inevitably be more difficult as a result of his placement in protective custody; c.) He is unlikely to receive adequate treatment for his mental conditions; and d.) His family is experiencing exceptional hardship which will continue to impact them for the duration of his sentence.
3. It will already be clear from the indicative sentences expressed that I have not found "special circumstances."
4. A sentence of imprisonment, being an offender's first time in custody, does not of itself necessarily warrant a finding of "special circumstances."
5. Mr Dhankhar has requested being placed in protection, as previously referred to above. He can at any time request being returned to the general prison population. The period he may remain in "protection" is accordingly indeterminate. I am aware that the conditions of "protection" are more limited than the conditions are for the "general prison population." However, no evidence has been placed before me that the offender is suffering in any particularly adverse or harsh way from being in "protection," and "protection" can be less stressful than being in the general prison population.
6. I am unable to conclude that Corrections NSW will not be able to provide some appropriate treatment for the offender as there is uncertainty as to what treatment, or the degree of treatment that might assist him. The "Deniers Programme" would seem to be an appropriate starting point.
7. The main underlying reason for finding "special circumstances" is where it is evident that a departure from the statutory relationship in the offender's favour is likely to assist his rehabilitation by providing for a longer period of supervised parole. Parole is usually only supervised for a maximum of three years. The sentence to be imposed will provide for a period well in excess of that which is likely to be supervised and at this time the prospect of rehabilitation is entirely uncertain.
8. While I accept that his family will experience hardship, as referred to above, I note that any appropriate sentence must be a substantial one, and hardship to his family inevitable. I do not regard the hardship as so "exceptional" as to warrant a finding of "special circumstances." I do not regard "special circumstances" as requiring a finding of "exceptional" hardship before an offender can be given the benefit of a variation of the statutory relationship. In my view, in this matter, it would be simply inappropriate on either basis.

AGGREGATE SENTENCE

1. In circumstances where I am dealing with the offender for thirty-nine offences, I am required to consider the question of totality.
2. The parties have not referred the Court to any comparable matters on sentence. As a result, I have turned to the individual statistics available through JIRS for each of the individual different type of offence which can now be drilled down to individual cases where they have been reported either at first instance or as a result of an appeal to the Court of Criminal Appeal. I have, however, despite the time spent trying to find relevant matters which might supply some guidance, been unable to find any matter of a like nature and to the scale of offending by this offender. As the Court of Criminal Appeal has remarked on many occasions, statistics are a very blunt tool.
3. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of all or any other offence, if so, the sentences should be served at the same time, but if not, there should be some accumulation between the sentences (Cahyadi v R [2007] NSWCCA 1).
4. Both specific and general deterrence must be taken into account. Sexual offences involving the administration of sedative drugs to unaware victims have become increasingly prevalent and difficult to detect and prosecute due to the effect of the administered drugs depriving victims of memory of the offending against them.
5. I have taken into account all of the matters previously referred to in these Reasons, and I am fully aware that the offender is now 45 years of age and will be significantly older before first being eligible for parole. However, in my view, no lesser sentence would properly reflect the purposes of sentencing or the seriousness of the offending.
6. I am satisfied that there should be some accumulation between each of the offences in order to reflect the totality of the criminality. The accumulation will be notional in circumstances where I propose to impose one aggregate sentence.
7. The offender was arrested on 21 October 2018 and released on bail on 31 October 2018. As a result of a breach of bail he was in custody for the day only on 14 December 2022. This is a total period of 11 days pretrial custody.
8. At the conclusion of the trial on 24 April 2023 he was returned to custody where he has remained to date. All custody has been only in relation to these offences.
9. Accordingly, the commencement date of the sentence is backdated to 13 April 2023.
10. The aggregate sentence is a sentence of 30 years' non-parole with a balance of term of 10 years.
11. The sentence commences on 13 April 2023 and the 30 years' non-parole period expires on 12 April 2053. The parole period commences on 13 April 2053 and expires on 12 April 2063. DHANKHAR TABLE OF CHARGES AND PENALTIES +SENTENCE 7MAR25 (64813, docx)

Amendments 07 March 2025 - Schedule and remarks on sentence amended to reflect correct sentence commencement date of 13 April 2023. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 March 2025