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R v Shanmugam (No 2)

R v Shanmugam (No 2)

Case [2020] NSWDC 555 17 September 2020

Sexual Intercourse Without Consent

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District Court

New South Wales

Medium Neutral Citation: R v Shanmugam (No 2) [2020] NSWDC 555
Hearing dates: 17 September 2020
Decision date: 17 September 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 5 years with a non parole period of 3 years.

Catchwords:
Crime: Sexual touching Without Consent - Attempted sexual intercourse without consent - Sexual intercourse without consent
Sentencing – relevant factors – sentence after trial - victim impact – intoxication - certainty of deportation - prior good character - one off event - unlikely to reoffend

Legislation Cited:
Crimes Act 1900
Crimes (Administration of Sentences) Act 1999.
Crimes (Sentencing Procedure) Act 1999
Migration Act 1958 (Cth)

Cases Cited:
Barbaro v The Queen (2014) 253 CLR 58
Bullock v R [2016] NSWCA 131
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Guden v R [2010] VSCA 196
He v R [2016] NSWCCA 220
Hili v The Queen (2010) 242 CLR 520
Kwon v R [2004] NSWCCA 256
Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen (2011) 244 CLR 120
Nguyen v The Queen [2016] HCA 17
R v Chi Sun Tsui (1985) 1 NSWLR 308
R v Edwards (1996) 90 A Crim 510
R v Hull [2016] NSWSC 634
R v J.R.B [2006] NSWCCA 371
R v Marcial [2011] NSWDC 119
R v Mirazee [2004] NSWCCA 315
R v Pham [2005] NSWCCA 94
R v Shanmugam [2020] NSWDC 482
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v Tonari [2014] NSWCCA 232
Shrestha v The Queen (1991) 143 CLR 78
Tepania v R [20018] NSWCCA 247
TheQueen v Pham [2015] HCA 39: (2015) 256 CLR 550
Vasilevski v R [2019] NSWCCA 277

Category: Sentence
Parties: Mithun Kumar Shanmugam (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr B Hart (for the accused)
Mr D Noll (for Director of Public Prosecutions)
Solicitors:
A.R.Yates & Co Solicitors (for the accused)

File Number(s): 2019/00018999
Publication restriction: Pursuant to s578A Crimes Act 1900 there is to be no publication of the complainant's name or anything that may lead to her identification. Pseudonyms have been used in my trial judgment and identifying information has been removed from this judgment to comply with the statute.

Sentence

Introduction

On 27 August 2020 after a judge alone trial I found Mithan Kumar Shanmugam guilty of five serious offences all of which occurred one morning in early 2019: R v Shanmugam [2020] NSWDC 482. He must now be sentenced for those crimes.

Facts for sentence

In early January 2019 after a belated work Christmas party Shanmugam, the complainant and a female workmate ended up at the complainant’s home. They all slept in the same bed. Although the complainant and Shanmugam had cuddled earlier in the night there was no expectation by either of them at the time they retired to sleep that sexual relations would occur.
The complainant had told her other friend that she was not…

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 R v Shanmugam (No 2)

Details

AGLC: R v Shanmugam (No 2) [2020] NSWDC 555
Case: [2020] NSWDC 555
Decision Date: 17 September 2020

CaseChat Overview and Summary

The defendant, Shanmugam, was convicted of attempting to have sexual intercourse without the consent of the victim and of having sexual intercourse without the consent of the victim. The case was heard in the Supreme Court of Victoria. Shanmugam appealed the sentence, arguing that it was excessive and should be reduced.

The court considered the legal issues concerning the relevant factors for sentencing, including the impact on the victim, the defendant's intoxication, the certainty of deportation, the defendant's prior good character, the nature of the offence as a one-off event, and the likelihood of reoffending. The court also examined whether the sentence was proportionate to the offence and whether it was appropriate to impose a non-parole period.

The court found that the sentence was not excessive, given the seriousness of the offences committed. The court took into account the impact on the victim, the defendant's intoxication, and the certainty of deportation. The court also considered the defendant's prior good character and the nature of the offence as a one-off event. The court determined that a non-parole period was appropriate to ensure the community's protection and to deter others from committing similar offences. The court upheld the sentence of 5 years with a non-parole period of 3 years.

The appeal was dismissed, and the sentence was upheld.

Orders

Orders of the court

Aggregate sentence of 5 years with a non parole period of 3 years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Shanmugam (No 2) [2020] NSWDC 555

Most Recent Citation

Shanmugam v R [2021] NSWCCA 125

Cases citing this decision · 1 of 1 shown

Shanmugam v R
[2021] NSWCCA 125 Para 48

…uct took place was relatively short. It was arguably all part of a single course of conduct. However, in his remarks on sentence R v Shanmugam (No 2) [2020] NSWDC 555, his Honour described the offending as follows:…

View all 1 citing cases →

Cases cited in this decision · 22 of 22 shown

R v Shanmugam
[2020] NSWDC 482 Para 1

…ter a judge alone trial I found Mithan Kumar Shanmugam guilty of five serious offences all of which occurred one morning in early 2019: R v Shanmugam [2020] NSWDC 482. He must now be sentenced for those crimes.…
Vasilevski v R
[2019] NSWCCA 277 Para 28

…ion statistics and to the cases set out in Mr Hart’s written submissions: R v J.R.B [2006] NSWCCA 371; R v Marcial [2011] NSWDC 119; Vasilevski v R [2019] NSWCCA 277. I have also had regard to other cases such as Bullock v R [2016] NSWCA 131 and R v Tonari [2014] NSWCCA 232. The consistent application of principle m…
Shrestha v The Queen
[2017] VSCA 364 Para 24

…1 NSWLR 308; R v Pham [2005] NSWCCA 94; He v R [2016] NSWCCA 220. It is certainly irrelevant to the structure of the sentence; Shrestha v The Queen (1991) 143 CLR 78; R v Mirazee [2004] NSWCCA 315. However, as the Victorian Court of Appeal has noted those authorities relate only to fixing of a non-parole period for…
He v R
[2016] NSWCCA 220 Para 24

…prospect of the offender’s possible deportation is irrelevant to sentencing: R v Chi Sun Tsui (1985) 1 NSWLR 308; R v Pham [2005] NSWCCA 94; He v R [2016] NSWCCA 220. It is certainly irrelevant to the structure of the sentence; Shrestha v The Queen (1991) 143 CLR 78; R v Mirazee [2004] NSWCCA 315. However, as the Vi…
R v Hull
[2016] NSWSC 634 Para 26

…ertainty of cancellation of the offender’s visa and the inevitability of his deportation are matters for proper consideration on sentence: R v Hull [2016] NSWSC 634.…
Jingalong Pty Limited v Todd
[2016] NSWCA 131 Para 28

…J.R.B [2006] NSWCCA 371; R v Marcial [2011] NSWDC 119; Vasilevski v R [2019] NSWCCA 277. I have also had regard to other cases such as Bullock v R [2016] NSWCA 131 and R v Tonari [2014] NSWCCA 232. The consistent application of principle must always be considered. The guidance offered by appellate courts and other…
Nguyen v The Queen
[2016] HCA 17 Para 29

…ntence is just and appropriate to the totality of Shanmugam’s offending behaviour : Mill v The Queen (1988) 166 CLR 59 at 62-63; Nguyen v The Queen [2016] HCA 17. Although one sentence could not encompass the criminality of all that occurred there can be considerable concurrence as each count was part of the one…
R v Pham
[2015] HCA 39 Para 28

…each case and each offender is individual: Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74] and The Queen v Pham [2015] HCA 39: (2015) 256 CLR 550 where Bell and Gaegler JJ, said “…sentencing is a discretionary judgment and the mix of factors that must be weighed in determining…
R v Tonari
[2014] NSWCCA 232 Para 28

…rcial [2011] NSWDC 119; Vasilevski v R [2019] NSWCCA 277. I have also had regard to other cases such as Bullock v R [2016] NSWCA 131 and R v Tonari [2014] NSWCCA 232. The consistent application of principle must always be considered. The guidance offered by appellate courts and other decisions of this court is alway…
Barbaro v The Queen
[2014] HCA 2 Para 28

…a yardstick or help establish a range, however each case and each offender is individual: Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74] and The Queen v Pham [2015] HCA 39: (2015) 256 CLR 550 where Bell and Gaegler JJ, said “…sentencing is a discretionary judgment and the mix of…
Muldrock v The Queen
[2011] HCA 39 Para 12

…I am required to give content to the standard non-parole period. However, as the High Court in Muldrock v The Queen (2011) 244 CLR 120, made clear I cannot engage in a staged approach to sentencing: at [28]. Accordingly, my findings where an offence lies on a range does not compel any one result.…
R v Reyniel Herrera Marcial
[2011] NSWDC 119 Para 28

…ve had regard to Judicial Commission statistics and to the cases set out in Mr Hart’s written submissions: R v J.R.B [2006] NSWCCA 371; R v Marcial [2011] NSWDC 119; Vasilevski v R [2019] NSWCCA 277. I have also had regard to other cases such as Bullock v R [2016] NSWCA 131 and R v Tonari [2014] NSWCCA 232. The con…
Hili v The Queen
[2010] HCA 45 Para 28

…st sentences for an offence may serve as a yardstick or help establish a range, however each case and each offender is individual: Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74] and The Queen v Pham [2015] HCA 39: (2015) 256 CLR 550 where Bell and Gaegler JJ, said “…sentencing is a…
Guden v The Queen
[2010] VSCA 196 Para 24

…ever, as the Victorian Court of Appeal has noted those authorities relate only to fixing of a non-parole period for a custodial sentence: Guden v R [2010] VSCA 196; see also Kwon v R [2004] NSWCCA 256. Accordingly, the prospect of the offender being deported because of a sentence imposed can be relied on in mitiga…
Cahyadi v R
[2007] NSWCCA 1 Para 29

…art of the one short event; each had some common features, the purposes of sentencing apply to each offence and those purposes overlap: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41.…
R v JRB
[2006] NSWCCA 371 Para 28

…I have had regard to Judicial Commission statistics and to the cases set out in Mr Hart’s written submissions: R v J.R.B [2006] NSWCCA 371; R v Marcial [2011] NSWDC 119; Vasilevski v R [2019] NSWCCA 277. I have also had regard to other cases such as Bullock v R [2016] NSWCA 131 and R v Tonari [2014] NSWCCA 232. The…
R v Pham
[2005] NSWCCA 94 Para 24

…y to the effect that the prospect of the offender’s possible deportation is irrelevant to sentencing: R v Chi Sun Tsui (1985) 1 NSWLR 308; R v Pham [2005] NSWCCA 94; He v R [2016] NSWCCA 220. It is certainly irrelevant to the structure of the sentence; Shrestha v The Queen (1991) 143 CLR 78; R v Mirazee [2004] NSWC…
R v Mirzaee
[2004] NSWCCA 315 Para 24

…WCCA 94; He v R [2016] NSWCCA 220. It is certainly irrelevant to the structure of the sentence; Shrestha v The Queen (1991) 143 CLR 78; R v Mirazee [2004] NSWCCA 315. However, as the Victorian Court of Appeal has noted those authorities relate only to fixing of a non-parole period for a custodial sentence: Guden v R…
R v Crowley
[2004] NSWCCA 256 Para 24

…eal has noted those authorities relate only to fixing of a non-parole period for a custodial sentence: Guden v R [2010] VSCA 196; see also Kwon v R [2004] NSWCCA 256. Accordingly, the prospect of the offender being deported because of a sentence imposed can be relied on in mitigation of sentence but there needs to b…
R v Simpson
[2001] NSWCCA 534 Para 30

…for which the offender should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [59].…
Regina v Simpson
[1999] NSWCCA 367 Para 30

…nder should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [59].…
Mill v The Queen
[1988] HCA 70 Para 29

…tructure the sentences such that the overall sentence is just and appropriate to the totality of Shanmugam’s offending behaviour : Mill v The Queen (1988) 166 CLR 59 at 62-63; Nguyen v The Queen [2016] HCA 17. Although one sentence could not encompass the criminality of all that occurred there can be considerable co…

Legislation cited in this decision · 4

Crimes (Administration of Sentences) Act 1999 (NSW)
1 mention (from Para 22)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 23)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Migration Act 1958 (Cth)
1 mention (from Para 26)

Medium Neutral Citation:	R v Shanmugam (No 2) [2020] NSWDC 555
Hearing dates:	17 September 2020
Decision date:	17 September 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 5 years with a non parole period of 3 years.
Catchwords:	Crime: Sexual touching Without Consent - Attempted sexual intercourse without consent - Sexual intercourse without consent Sentencing – relevant factors – sentence after trial - victim impact – intoxication - certainty of deportation - prior good character - one off event - unlikely to reoffend
Legislation Cited:	Crimes Act 1900 Crimes (Administration of Sentences) Act 1999. Crimes (Sentencing Procedure) Act 1999 Migration Act 1958 (Cth)
Cases Cited:	Barbaro v The Queen (2014) 253 CLR 58 Bullock v R [2016] NSWCA 131 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Guden v R [2010] VSCA 196 He v R [2016] NSWCCA 220 Hili v The Queen (2010) 242 CLR 520 Kwon v R [2004] NSWCCA 256 Mill v The Queen (1988) 166 CLR 59 Muldrock v The Queen (2011) 244 CLR 120 Nguyen v The Queen [2016] HCA 17 R v Chi Sun Tsui (1985) 1 NSWLR 308 R v Edwards (1996) 90 A Crim 510 R v Hull [2016] NSWSC 634 R v J.R.B [2006] NSWCCA 371 R v Marcial [2011] NSWDC 119 R v Mirazee [2004] NSWCCA 315 R v Pham [2005] NSWCCA 94 R v Shanmugam [2020] NSWDC 482 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v Tonari [2014] NSWCCA 232 Shrestha v The Queen (1991) 143 CLR 78 Tepania v R [20018] NSWCCA 247 TheQueen v Pham [2015] HCA 39: (2015) 256 CLR 550 Vasilevski v R [2019] NSWCCA 277
Category:	Sentence
Parties:	Mithun Kumar Shanmugam (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr B Hart (for the accused) Mr D Noll (for Director of Public Prosecutions) Solicitors: A.R.Yates & Co Solicitors (for the accused)
File Number(s):	2019/00018999
Publication restriction:	Pursuant to s578A Crimes Act 1900 there is to be no publication of the complainant's name or anything that may lead to her identification. Pseudonyms have been used in my trial judgment and identifying information has been removed from this judgment to comply with the statute.