Gleeson JA at [1] Bellew J at [2] Hamill J at [101]
Decision:
The appeal is dismissed.
Catchwords:
CRIMINAL LAW - Appeal - Practice and procedure - Offence of having sexual intercourse without consent - Where matter referred to the Court of Criminal Appeal following an application under the Crimes (Appeal and Review) Act 2001 - Where referral made on single ground of Muldrock error - Where appellant sought to raise additional grounds - Whether appellant required an extension of time and leave of the Court in order to be able to rely upon such grounds - Where unnecessary to determine that question in light of error found in respect of the ground which was the subject of the referral
CRIMINAL LAW - Appeal - Muldrock error - Where sentencing judge engaged in two-stage process of sentencing - Error made out - Necessity to consider the remaining three grounds in determining whether some other sentence was warranted in law and should have been passed
CRIMINAL LAW - Appeal - Where legislation made provision for alternative bases on which jury could be satisfied of the appellant's knowledge of lack of consent on the part of the victim - Where Crown submitted on sentence that a finding should be made that the appellant knew that the victim was not consenting to sexual intercourse - Where no contrary submission was made by counsel for the appellant on sentence - Whether sentencing judge had an obligation to consider the remaining alternatives
CRIMINAL LAW - Appeal - Where sentencing judge did not specifically refer to low risk of re-offending - Where specific reference to such risk in Pre-sentence report - Where sentencing judge obviously aware of report - Necessity to make allowance for the fact that reasons were delivered ex tempore immediately following sentence proceedings
CRIMINAL LAW - Appeal - Where error found - Where appellant sentenced to imprisonment for 7 years and 6 months with a non-parole period of 5 years - Whether some other sentence warranted in law - Nature of offending - Where appellant misrepresented to victim that he was able to assist her career ambitions - Where offending not planned - Where statements made by victim along with her demeanour clearly indicated a lack of consent - Where appellant forced intercourse in any event - No other sentence warranted
[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.
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Details
AGLC
Rajendran v R [2014] NSWCCA 113
Case
[2014] NSWCCA 113
Decision Date
CaseChat Overview and Summary
In Rajendran v R, the appellant was convicted of having sexual intercourse without the consent of the victim and was subsequently sentenced to imprisonment. The matter was referred to the Court of Criminal Appeal following an application under the Crimes (Appeal and Review) Act 2001 on the basis of a single ground, concerning a Muldrock error. The appellant sought to raise additional grounds but the court did not need to determine whether an extension of time and leave were required as the initial error was found. The court examined whether the sentencing judge had engaged in a two-stage process of sentencing and whether the error warranted reconsideration of the sentence.
The Court of Criminal Appeal found that the sentencing judge had indeed engaged in a two-stage process and that a Muldrock error had been made. The court considered whether the remaining grounds should be assessed to determine if a different sentence was warranted. The court also examined whether the sentencing judge had an obligation to consider alternative bases on which the jury could be satisfied of the appellant's knowledge of the lack of consent, as provided for by legislation. The court concluded that the sentencing judge should have considered the remaining alternatives, but the error did not necessarily lead to a different sentence.
The court considered the nature of the offending, which involved the appellant misrepresenting his ability to assist the victim's career ambitions and forcing intercourse despite clear indications of lack of consent. The court found that the appellant's risk of re-offending was low, but the sentencing judge had not specifically referred to this risk, despite being aware of it from the pre-sentence report. The court noted that the reasons were delivered ex tempore immediately following the sentence proceedings.
Ultimately, the Court of Criminal Appeal found that the error did not warrant a different sentence. The appellant was sentenced to imprisonment for 7 years and 6 months with a non-parole period of 5 years. The court concluded that no other sentence was warranted in law given the nature of the offending and the circumstances.