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Sabapathy v R

Sabapathy v R

Case [2008] NSWCCA 82 24 April 2008

Plea of Guilty

Sentencing

Appeal

Miscarriage of Justice

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: SABAPATHY v R [2008] NSWCCA 82

HEARING DATE(S): 10 March 2008

JUDGMENT DATE:
24 April 2008

JUDGMENT OF: Giles JA at 1; Adams J at 79; Latham J at 80

DECISION: (1) Conviction appeal dismissed; (2) Leave to appeal against sentence granted but appeal dismissed.

CATCHWORDS: Criminal law - plea of guilty - sentenced to imprisonment - appeal against conviction - whether plea attributable to genuine consciousness of guilt - whether integrity of plea affected by misunderstandings - or other matters - on facts, no miscarriage of justice - freely entered plea - whether sentence excessive - grounds of appeal not made out and in any event no less severe sentence warranted in law.

CATEGORY: Principal judgment

CASES CITED: Mulato v Regina [2006] NSWCCA 2182;
R v Hura (2001) 121 A Crim 474;
R v Rae (No 2) [2005] NSWCCA 380;
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168;
Sauer v R [2006] NSWCCA 81.

PARTIES: Elvis Sabapathy - Appellant
The Crown - Respondent

FILE NUMBER(S): CCA 2007/3035

COUNSEL: R Bonnici - Appellant
D Woodburne - Crown

SOLICITORS: Justin Lewis & Co - Appellant
S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 06/11/0472

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

LOWER COURT DATE OF DECISION: 14 June 2007 (Sentence)

CA 2007/3035
DC 06/11/0472

GILES JA
ADAMS J
LATHAM J
Thursday 24 April 2008

Elvis SABAPATHY v R

Judgment

1 GILES JA: The appellant pleaded guilty to a charge of sexual intercourse without consent (Crimes Act 1900, s 61I). He was sentenced to imprisonment for a non-parole period of 18 months and a further term of 18 months. He appealed against conviction and applied for leave to appeal against sentence.

2 According to the agreed facts upon which the appellant was sentenced, the offence occurred on 29 May 2005. The complainant had moved into a granny flat attached to the appellant’s home, he being her landlord, on the previous day. The appellant invited the complainant in to his home for a welcome drink. They consumed alcoholic drinks, had some food, and watched television and a DVD. The complainant became drowsy. The appellant asked if she was sleepy, but she did not respond. The appellant picked her up and carried her into his bedroom, where he “started touching her and removed her clothing and had sexual intercourse with her in a number of different positions, which [she] found painful”. At one point the appellant ejaculated on the complainant’s abdomen. The complainant did not consent to any of these acts.

3 An indictment had originally been presented in which the appellant was charged with a number of offences alleged to have been committed on this occasion: four counts of sexual intercourse without consent, and one count of administering a stupefying drug with intent to commit an indictable offence (Crimes Act, s 38) (“the drug charge”). He…

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 Sabapathy v R

Details

AGLC: Sabapathy v R [2008] NSWCCA 82
Case: [2008] NSWCCA 82
Decision Date: 24 April 2008

CaseChat Overview and Summary

Sabapathy was convicted and sentenced to imprisonment, subsequently appealing against both the conviction and the sentence. The High Court of Australia was tasked with determining whether Sabapathy's plea of guilty was attributable to a genuine consciousness of guilt, and whether the integrity of the plea was affected by misunderstandings or other factors. The court also examined whether the sentence was excessive and whether any grounds for appeal had been substantiated.

The central legal issues involved assessing the voluntariness and understanding of Sabapathy's plea of guilty, particularly in light of any misunderstandings that may have influenced his decision. The court scrutinised whether Sabapathy's plea was truly voluntary and made with a full understanding of the consequences, as well as whether any errors or misunderstandings rendered the plea invalid. Furthermore, the court evaluated whether the sentence imposed was excessive or whether a different sentence would be more appropriate under the circumstances.

The High Court concluded that Sabapathy's plea of guilty was genuinely attributable to a consciousness of guilt, unaffected by any misunderstandings. The court found that the plea was freely entered and that no miscarriage of justice had occurred. Additionally, the court determined that the sentence was not excessive, and any grounds of appeal did not warrant a different sentence under the law. Consequently, the appeal against both the conviction and the sentence was dismissed.

Orders