Regina v Kondasinghe Aron Sudath - [2007] NSWDC 213

CITATION: Regina v Kondasinghe Aron Sudath [2007] NSWDC 213
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22-23 & 30 March 2007;
29 May 2007;
20 July 2007

JUDGMENT DATE:
21 September 2007

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ;

DECISION: Count 1 – Convicted. ; Sentenced N.P.P. 3 years to commence 14 March 2008 expire 13 March 2011.; Balance of term 2 years to expire 13 March 2013; Count 2 - Convicted.; Sentenced N.P.P. 6 months to date from 14 September 2007 expire 13 March 2008.; Balance of term 9 months expire 19 December 2008; MFI 23 – surrendered passport on 30/3/07 @ Parramatta is to be returned to accused.

CATCHWORDS: Criminal Law - Sentence after trial - secual intercourse without consent - anal - assault - domestic violence - standard non parole period - assessing mid range of seriousness for sexual intercourse offences - distinguished medical career - strong support in Sri Lankan community - absence of contrition.

LEGISLATION CITED: s 54A (2) Crime (Sentencing Procedure) Act 1989

CASES CITED: R v Gladue [1999] 1 SCR 688 at [80]
De Simoni v The Queen ((1972) 126 CLR 576
R v Gebraiel (Unreported) NSW CCA 18 November 1994
R v Hartikainen, unreported, NSWCCA 8 June 1993
R v Pay [1999] NSW CCA 40
R v O’Grady, unreported, NSWCCA 13 May 1997
R v AGP [2004] NSW CCA 434 at [13]
R v Hamid [2006] NSWCCA 302

PARTIES: Regina
Kondasinghe Aron Sudath

FILE NUMBER(S): 06/21/0266

COUNSEL: C Patrick, Crown Prosecutor

SOLICITORS: CROWN: MR LOW
F/W: MS A BANNISTER

SENTENCE

1 HIS HONOUR: Kondasinghe Aron Sudath practised as a doctor. His public persona was that of a man of deep religious convictions, having an excellent academic record, who liked to dedicate his time, resources and professional services to underprivileged people in need; gentle, caring and pursuing with skill and compassion his medical career. He presented publicly as the devoted husband to Lakjawani Advenagi and father to their child. Once, however, the door to the family home was closed, the private persona could be very different.

2 In mid-April 2005, Miss Advenagi had reached a point where she could no longer tolerate the abuse and violence she experienced from him. She was concerned their fifteen-month-old son was being affected by it. She told him she wished to separate. She had not yet done so. It was in these circumstances on 29 and 30 April 2005 the two offences - one of anal penetration of Miss Advenagi without her consent and the other of an assault upon her - occurred.

3 Kondasinghe Sudath maintains he is not guilty of either offence. A jury has found otherwise. Today he must be held accountable for the criminal conduct the jury found him guilty of.

4 As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these offences before this…

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 Regina v Kondasinghe Aron Sudath

Details

AGLC: Regina v Kondasinghe Aron Sudath [2007] NSWDC 213
Case: [2007] NSWDC 213
Decision Date: 21 September 2007

CaseChat Overview and Summary

The appellant, Kondasinghe Aron Sudath, was convicted in the Supreme Court of New South Wales of sexual intercourse without consent and common assault. He appealed against his sentence. The appeal centred on the severity of the sentence and whether the court had correctly assessed the seriousness of the crimes, particularly the sexual intercourse without consent. The court had to consider the appropriate non-parole period, taking into account the mid-range of seriousness for sexual offences and the appellant's personal circumstances, including his distinguished medical career and community support.

The court examined whether the trial judge had erred in assessing the seriousness of the offences, particularly the sexual intercourse without consent. The trial judge had determined that the offences were of mid-range seriousness, leading to the imposition of a non-parole period of three years for the sexual intercourse offence and six months for the assault. The appellant's legal team argued that the sentence was excessive, given his personal circumstances and the absence of any mitigating factors such as remorse. The court had to balance these considerations against the need to uphold the deterrent effect of sentencing and ensure public safety.

After a thorough review of the evidence and legal arguments, the court found that the trial judge had not erred in assessing the seriousness of the offences. The court acknowledged the appellant's distinguished career and community support but emphasised the gravity of the crimes committed, particularly the sexual assault. The court upheld the sentence, noting that while the appellant's background was commendable, it did not warrant a departure from the mid-range sentencing guidelines for such serious offences. The appeal was dismissed, and the original sentence was affirmed.

Orders

Orders of the court

Count 1 - Convicted. ; Sentenced N.P.P. 3 years to commence 14 March 2008 expire 13 March 2011.; Balance of term 2 years to expire 13 March 2013; Count 2 - Convicted.; Sentenced N.P.P. 6 months to date from 14 September 2007 expire 13 March 2008.; Balance of term 9 months expire 19 December 2008; MFI 23 - surrendered passport on 30/3/07 @ Parramatta is to be returned to accused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Regina v Kondasinghe Aron Sudath [2007] NSWDC 213 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22-23 & 30 March 2007; 29 May 2007; 20 July 2007
JUDGMENT DATE:	21 September 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ;
DECISION:	Count 1 – Convicted. ; Sentenced N.P.P. 3 years to commence 14 March 2008 expire 13 March 2011.; Balance of term 2 years to expire 13 March 2013; Count 2 - Convicted.; Sentenced N.P.P. 6 months to date from 14 September 2007 expire 13 March 2008.; Balance of term 9 months expire 19 December 2008; MFI 23 – surrendered passport on 30/3/07 @ Parramatta is to be returned to accused.
CATCHWORDS:	Criminal Law - Sentence after trial - secual intercourse without consent - anal - assault - domestic violence - standard non parole period - assessing mid range of seriousness for sexual intercourse offences - distinguished medical career - strong support in Sri Lankan community - absence of contrition.
LEGISLATION CITED:	s 54A (2) Crime (Sentencing Procedure) Act 1989
CASES CITED:	R v Gladue [1999] 1 SCR 688 at [80] De Simoni v The Queen ((1972) 126 CLR 576 R v Gebraiel (Unreported) NSW CCA 18 November 1994 R v Hartikainen, unreported, NSWCCA 8 June 1993 R v Pay [1999] NSW CCA 40 R v O’Grady, unreported, NSWCCA 13 May 1997 R v AGP [2004] NSW CCA 434 at [13] R v Hamid [2006] NSWCCA 302
PARTIES:	Regina Kondasinghe Aron Sudath
FILE NUMBER(S):	06/21/0266
COUNSEL:	C Patrick, Crown Prosecutor
SOLICITORS:	CROWN: MR LOW F/W: MS A BANNISTER