Rajasekar v The Queen - [2017] NSWCCA 113

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Rajasekar v R [2017] NSWCCA 113
Hearing dates: 10 May 2017
Date of orders: 31 May 2017
Decision date: 31 May 2017
Before: Leeming JA at [1]
Adamson J at [2]
Wilson J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIME – Sentence appeal – offences of use carriage service to groom person under 16 – use carriage service to engage in sexual activity with person under 16 – possess child abuse material – further offences on a schedule - question of application of totality principle – complaint as to degree of accumulation – complaint of manifest excess – nor error found – no point of principle
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth).
Criminal Appeal Act 1912 (NSW)
Criminal Code Act 1995 (Cth)
Cases Cited: Cahyadi v R (2007) 168 A Crim R 41
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 19
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Nguyen v R (2016) 256 CLR 656; [2016] HCA 14
Category: Principal judgment
Parties: John RAJASEKAR (Applicant)
Regina (Respondent)
Representation: Counsel:
I McLachlan (Applicant)
L Fernandez (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2014/333056
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

16 December 2015

Before:

Hanley SC DCJ

File Number(s):

2014/333056

Judgment

LEEMING JA: I agree with Wilson J.
ADAMSON J: I agree with Wilson J.
WILSON J: This is an application for leave to appeal brought by John Rajasekar pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against sentence imposed upon him for four offences which might be broadly categorised as child abuse offences. His crimes, and the penalties imposed upon him on 16 December 2015 by Hanley SC DCJ, sitting at the District Court, are as follows:

Offence

Maximum penalty

Sentence Imposed

Possess Child Abuse Material (Seq. 7)

s 91H(2) Crimes Act 1900 (NSW)

10 years imprisonment

12 months imprisonment to date from 16 December 2015, expiring on 15 December 2016

Use Carriage Service to engage in sexual activity with person under 16 years (Seq. 10)

s 474.25A(1) Criminal Code 1995 (Cth)

15 years imprisonment

4 years imprisonment to date from 16 March 2016, expiring on 15 March 2020

Use Carriage Service to groom person under 16 years (Seq. 3)

s 474.27(1) Criminal Code 1995 (Cth)

12 years imprisonment

3 years imprisonment to date from 16 September 2017, expiring on 15 September 2020

Use Carriage Service to groom person under 16 years (Seq. 5)

s 474.27(1) Criminal Code 1995 (Cth)

12 years imprisonment

3 years imprisonment to date from 16 September 2018, expiring on 15 September 2021

Two additional counts of using a carriage service to groom a person under 16 years (sequences 1…

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 Rajasekar v The Queen

Details

AGLC: Rajasekar v The Queen [2017] NSWCCA 113
Case: [2017] NSWCCA 113
Decision Date: 31 May 2017

CaseChat Overview and Summary

In the High Court of Australia, the appellant, Rajasekar, appealed against his conviction and sentence for using a carriage service to groom a person under the age of 16, using a carriage service to engage in sexual activity with a person under 16, possessing child abuse material, and committing other scheduled offences. The primary issue before the court was whether the sentence imposed by the lower court was manifestly excessive or had failed to properly apply the totality principle. The court was also tasked with considering whether the sentence imposed was appropriate given the nature and circumstances of the offences.

The court examined the principles of sentencing, particularly focusing on the application of the totality principle which requires that the cumulative sentence should not be excessive relative to the gravity of the individual offences. The court assessed the sentence in light of the totality of the crimes, taking into account the gravity of each offence, the appellant's culpability, and the need for deterrence and rehabilitation. The court found that the sentence imposed was neither manifestly excessive nor had it failed to apply the totality principle appropriately. Each offence was considered in its individual gravity and cumulatively, and the sentence was deemed proportionate to the crimes committed.

The appeal was dismissed as the court found no error in the lower court's application of the sentencing principles. The court concluded that the sentence was within the range of appropriate penalties for the offences committed and that there was no manifest excess. The court emphasised that each case must be assessed on its unique facts and circumstances, and in this instance, the sentence was justified. The court's decision reaffirmed the importance of adhering to the principles of sentencing and the need for proportionality in the judicial process.

Orders