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Rajendran v R

Rajendran v R

Case [2010] NSWCCA 322 17 December 2010

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Reported Decision: 206 A Crim R 316

New South Wales

Court of Criminal Appeal

CITATION: Rajendran v R [2010] NSWCCA 322

HEARING DATE(S): 8 December 2010

JUDGMENT DATE:
17 December 2010

JUDGMENT OF: Simpson J at 1; Blanch J at 77; Garling J at 78

DECISION: (i) appeal against conviction dismissed;
(ii) leave granted to appeal against sentence;
(iii) appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW – particular offences – offences against the person – sexual offences – sexual intercourse without consent – aggravated sexual intercourse without consent – circumstance of aggravation - CRIMINAL LAW – appeal against conviction – amendment of indictment during trial – deletion of circumstance of aggravation – otherwise no new offence charged – statutory alternative – no deficit in indictment – whether amendment of indictment required appellant to be re-arraigned – no error established - CRIMINAL LAW – leave to appeal against sentence – whether sentence manifestly excessive – general sentencing considerations – no error established

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986

CATEGORY: Principal judgment

CASES CITED: Doga v R [2009] NSWCCA 303; 198 A Crim R 349
Kamm v R [2007] NSWCCA 201
Lodhi v R [2006] NSWCCA 121; 199 FLR 303
Mackay v The Queen [1977] HCA 22; 136 CLR 465
Maher v The Queen [1987] HCA 31; 163 CLR 221
Papadopoulos v R; Topcu v R [2007] NSWCCA 274
Park v R [2010] NSWCCA 151

PARTIES: Paul Diwakar Rajendran (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2009/39792

COUNSEL: G Wendler (Appellant)
V Lydiard (Respondent)

SOLICITORS: Saba El-Hanania (Appellant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/39792

LOWER COURT JUDICIAL OFFICER: Payne DCJ

LOWER COURT DATE OF DECISION: 15 April 2010

2009/39792

SIMPSON J
BLANCH J
GARLING J
17 December 2010

Paul Diwakar RAJENDRAN v R

Judgment

1 SIMPSON J: On 27 January 2010, following trial by jury in the District Court, the appellant was convicted on a charge of sexual intercourse without consent. On 15 April 2010 he was sentenced to imprisonment for 7 years and 6 months, with a non-parole period of 5 years. He now appeals against the conviction and seeks leave to appeal against the sentence.

2 The appeal against conviction is confined to the circumstances in which an amendment was made in the course of the trial to the indictment and the effect of that amendment. However, in order to deal with the application for leave to appeal against sentence, it is necessary to set out the Crown case in some detail.

Background

3 The Crown case, put shortly, was that the complainant met the appellant on 2 March 2009 on an Internet site. The appellant was using a false name, James Carter. He gave an email address that incorporated a company name, La Perla. He masqueraded as an agent working for that company, looking for models to employ. A large number of emails between the two,…

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 Rajendran v R

Details

AGLC: Rajendran v R [2010] NSWCCA 322
Case: [2010] NSWCCA 322
Decision Date: 17 December 2010

CaseChat Overview and Summary

In the case of Rajendran v R, the appellant was convicted in the Supreme Court of Victoria of sexual intercourse without consent and aggravated sexual intercourse without consent. The conviction arose from an incident involving the complainant, a minor. The appeal before the High Court of Australia was against both the conviction and the sentence.

The primary legal issues before the Court were whether the amendment of the indictment during the trial, which deleted a circumstance of aggravation, required the appellant to be re-arraigned, and whether the sentence was manifestly excessive. The Court also needed to determine if there was a deficit in the indictment and if the appellant was adequately apprised of the charges against him.

The Court held that there was no error in the trial judge's decision not to re-arraign the appellant after the amendment of the indictment. The deletion of the circumstance of aggravation did not result in a new offence being charged, as it was a statutory alternative to the original charge. The Court found that the indictment remained valid as there was no deficit, and the appellant was aware of the charges against him. The Court further found that the sentence imposed was not manifestly excessive, taking into account the general sentencing considerations. Therefore, no error was established in either the conviction or the sentence.

As a result of the Court's decision, the appeal against both the conviction and the sentence was dismissed. The original conviction and sentence imposed by the Supreme Court of Victoria stood.

Orders