R v [B] [2025] – Sentencing for Sexual Touching & Recording Without Consent – Criminal Law – Mr Anthony Strik
[Warning: this article contains material that some may find disturbing, including sexual assault.]
In R v [B] [2025], Mr Strik represented the accused, Mr [B]. He was instructed by Wissam Philopos of Stronghold Lawyers. The case was heard on 10 April 2025 in the NSW District Court before Sutherland DCJ, and orders were given on 24 April 2025.
Mr [B] pled guilty to three offences:
- Intentionally recording an intimate image without consent (s 91P(1) of the Crimes Act 1900 (NSW) (‘the Act’)); and
- Two offences of sexually touching another person without consent (s 61KC(a) of the Act).
The issue in this case was the appropriate sentence for Mr [B], depending on the objective seriousness of the offences, and the relevant aggravating and mitigating factors.
Background
On 25 January 2024, Mr [B] (who was intoxicated) found the female victim unconscious on a bench. He took her to an ATM machine and proceeded to sexually touch her on her breasts, bottom and vagina whilst recording the offence twice for approximately 30 seconds each.
Upon being questioned by a bystander, Mr [B] told him that the victim was his girlfriend, and then proceeded to run away before being arrested by police.
Mr [B] participated in an electronically recorded interview where he admitted he knew the victim was drunk and that he had recorded her. He admitted to the police that he was drunk and said his actions were “the biggest mistake I have ever done.”
He has since formally pled guilty.
Legal Arguments – Defence
Subjective Circumstances
The following subjective circumstances/considerations were submitted by the defendant:
- His apology letter to the Court and the victim, expressing “deep regret” for the offence;
- Character references from his relatives;
- A clinical psychologist’s Case Note Report of a pre-sentence consultation;
- His upbringing in an abusive household, leading to broken sleep patterns and regular alcohol consumption; and
- His participation in various courses in custody following the offence (including alcohol, drug and victim awareness courses).
Objective Circumstances
The defence’s written and oral submissions characterised the objective seriousness of the offences as “around the mid-range or lower.”
The most prevalent reasons for this submission include:
- The filming was not covert and had not been distributed;
- There was an absence of threat from the offender;
- The offender had not ejaculated, and there was no penile-vaginal penetration; and
- The offending occurred over a relatively short period of time.
Various mitigating factors were advanced, including that the offence caused little-to-no injury or emotional harm, the lack of premeditation, the guilty plea and prospects of rehabilitation. Regarding the offender’s intoxication, the defence submitted that whilst not mitigating the offence, it impacted his moral culpability.
The defence submitted that the Court would make a finding of special circumstances, as the offender supports his family in Nepal financially. They also highlighted that (though the Court cannot take into account the likelihood of deportation), if the Court sentenced Mr [B] for over 12 months, the good character test (under s 501 of the Migration Act) would likely apply, subjecting the offender to extra-curial punishment.
In light of Mr [B] being in custody for over 14 months, Mr Strik submitted that a non-full-time custodial sentence should be imposed. He submitted that a combination of two Community Corrections Orders (CCO) (accompanied by community service), and an Intensive Correction Order (ICO) would be appropriate in relation to the three charges.
Legal Arguments – Crown
The Crown submitted that full-time imprisonment was the only sentencing option available (as per the s 5 threshold, Crimes (Sentencing Procedure) Act 1999 (NSW)(‘the Sentencing Act’)) and that an ICO should not be considered in light of the objective seriousness of the offences.
The prosecution submitted that the risk of Mr [B] reoffending and the fact that the offender chose to make two separate recordings of the offence aggravated the offence.
The Crown highlighted that, contrary to the defence’s submissions, the absence of the dissemination of recordings did not reduce objective seriousness or mitigate the offence. They also noted that the absence of a threat was not a mitigating factor because the victim was unconscious and threats were not necessary (as per Kelly v R [2022] NSWCCA 189).
The offender’s actual knowledge of the absence of consent was also submitted to lead to a higher assessment of objective seriousness (as opposed to reckless indifference).
The Crown conceded that no aggravating factors were present, and the fact that Mr [B] had prior good character, pleaded guilty and demonstrated remorse were mitigating factors to be considered.
However, they also submitted that the Court could not find him unlikely to offend. This concern was supported by the Sentencing Assessment Report in which Mr [B] stated that whilst he knew his actions were wrong, he “felt unable to stop himself.”
Legal Reasoning
His Honour determined that the video recording of the offence fell within a broad mid-range of objective seriousness. He placed the offender’s touching of the victim’s breast in the mid-range of objective seriousness, aligning with the prosecution’s submission.
Sutherland DCJ also determined that Mr [B] ’s touching of the victim’s anus or vagina fell into the mid-range of objective seriousness due to the skin-on-skin touching. He rejected the defence’s submission that the action was “discrete” and affirmed the Crown’s submission that it was “part of a sequence of offending that can be seen to increase in severity.”
Regarding the skin-on-skin contact between the offender’s penis and the outside of the victim’s vagina, His Honour stated that this fell in the upper end of a range of objective seriousness and involved simulated intercourse. He rejected the defence’s submission that the lack of penetration reduced the objective seriousness of the offence.
Sutherland DCJ referred to the Consultant Psychologist’s risk assessment, revealing that Mr [B]’s risk of reoffending was approximately three times the rate of a ‘typical sex offender’ and Community Corrections assessed him as being at a “high risk of re-offending.”
His Honour rejected the defence’s argument in relation to extra-curial punishment as the likelihood of deportation is not relevant to judicial discretion in sentencing.
Both parties submitted that the offender has high prospects of rehabilitation, though the Crown simultaneously argued that there was a high likelihood of reoffending. His Honour acknowledged that these were separate considerations under the Sentencing Act, however, there was a considerable amount of overlap between the two factors.
He also noted that despite the complainant undergoing various self-awareness programs in custody, he was considered highly likely of repeated offending, negating a finding that he has “good prospects for rehabilitation.”
The defence’s submission that the short duration of the sexual assault mitigated the offence was rejected. His Honour cited Price J in R v Daley [2010], stating that most sexual assaults occur over a short period of time and a shorter duration does not mitigate the offence. Additionally, the submission that the victim suffered little-to-no injury or harm was rejected, as, though no victim impact statement was submitted, Judge Sutherland stated that she was likely to experience “ongoing psychological consequences” as a result of the offence
Outcome
Having regard to the 25% discount for Mr [B]’s early guilty pleas, His Honour gave an aggregate sentence of 5 years for the three offences, with a non-parole period of 3 years. In making this sentence, His Honour noted the special circumstances of Mr [B]’s dislocation from his family in Nepal and his first time in custody.
Analysis
This case is significant as it highlights how the Courts address the seriousness of offences, and the aggravating and mitigating factors, especially in cases of sexual offending. The intoxication of the offender, the absence of threat where the victim is intoxicated, and the prospects of deportation are not relevant mitigating factors for the purpose of sentencing.
Anthony Strik accepts briefs in criminal law matters. If your client requires experienced legal representation in the District or Supreme Court of NSW, please contact his chambers.