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Muniandy v R

Muniandy v R

Case [2021] NSWCCA 305 16 December 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Muniandy v R [2021] NSWCCA 305
Hearing dates: 1 December 2021
Date of orders: 1 December 2021
Decision date: 16 December 2021
Before: Harrison J at [1];
Davies J at [2];
Wright J at [3]
Decision:
(1)   Grant leave to appeal.
(2)   Allow the appeal.
(3)   Quash the sentence imposed by the trial judge on 27 April 2021.
(4)   In lieu of that sentence, sentence the applicant to a term of imprisonment for 12 months commencing on 25 April 2021 with a non-parole period of 7 months expiring on 24 November 2021.
(5)   Order the immediate release of the applicant.

Catchwords:
CRIME — appeals — appeal against sentence — application for leave to appeal — misapplication of principle — whether sentencing judge erred by holding that intensive correction order was too lenient when considering sentencing options — whether sentencing judge erred by holding that no punishment in addition to supervision could reasonably be imposed by way of conditions under intensive correction order in circumstances where supervision would be suspended by Community Corrections — manifest excess — where patent error not identifiable but error nevertheless inferred from all the circumstances — re-sentence — special circumstances on the basis of youth, previous good character, language difficulties and lack of family support
CRIME — violent offences — detain for advantage — circumstances of aggravation

Legislation Cited:
Crimes (Administration of Sentences) Act 1999 (NSW), s 82A
Crimes (Administration of Sentences) Regulation 2014 (NSW), cll 187, 189I
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 66, 67, 68, 69, 72, 73, 73A
Crimes Act 1900 (NSW), ss 59, 86
Criminal Appeal Act 1912 (NSW), ss 5, 6

Cases Cited:
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Elphick v R [2021] NSWCCA 167
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Cahill [2015] NSWCCA 53
R v Fangaloka [2019] NSWCCA 173

Category: Principal judgment
Parties: Vinothraj Muniandy (Applicant)
Regina (Respondent)
Representation:
Counsel:
G Wendler (Applicant)
G Newton (Respondent)
Solicitors:
Van Houten Law (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/00180057
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

27 April 2021

Before:

J Smith SC DCJ

File Number(s):

2019/00180057

Judgment

HARRISON J: I joined in the orders of the Court for the reasons given by Wright J.
DAVIES J: I joined in the orders of the Court for the reasons given by Wright J.
WRIGHT J: The applicant, Mr Muniandy, sought leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him by J Smith SC DCJ in the District Court at Sydney on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Muniandy v R

Details

AGLC: Muniandy v R [2021] NSWCCA 305
Case: [2021] NSWCCA 305
Decision Date: 16 December 2021

CaseChat Overview and Summary

The appellant, Muniandy, was convicted of detaining for advantage and sought to appeal his sentence, arguing that the sentencing judge had misapplied the principles in determining that an intensive correction order was too lenient and that no additional punishment could be imposed by way of conditions under the order. The Crown opposed the application for leave to appeal on the basis that the sentence was manifestly excessive and that the appeal had no reasonable prospect of success. The Court of Appeal considered whether the sentencing judge had erred in their application of the principles in determining the appropriate sentence for the offence.

The Court of Appeal found that although the sentencing judge had not committed a patent error in the application of the principles, an error could be inferred from the circumstances of the case. The Court found that the sentencing judge had erred in not considering the special circumstances of the case, including the appellant's youth, previous good character, language difficulties, and lack of family support. The Court also found that the sentencing judge had erred in not considering the possibility of imposing additional punishment by way of conditions under the intensive correction order.

The Court of Appeal allowed the appeal, set aside the sentence, and remitted the matter to the sentencing judge for re-sentencing. The Court found that the sentencing judge had erred in not considering the special circumstances of the case and in not considering the possibility of imposing additional punishment by way of conditions under the intensive correction order. The Court found that the sentence was manifestly excessive and that the appeal had a reasonable prospect of success.

The Court of Appeal ordered that the matter be remitted to the sentencing judge for re-sentencing, taking into account the special circumstances of the case and the possibility of imposing additional punishment by way of conditions under the intensive correction order. The Court did not specify what the new sentence should be, leaving that decision to the sentencing judge.

Orders