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Shanmugam v R

Shanmugam v R

Case [2021] NSWCCA 125 25 June 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Shanmugam v R [2021] NSWCCA 125
Hearing dates: 31 May 2021
Date of orders: 25 June 2021
Decision date: 25 June 2021
Before: Harrison J at [1]
Beech-Jones J at [54]
Cavanagh J at [55]
Decision:
(1) Dismiss the appeal against conviction.
(2) Grant leave to appeal against sentence but dismiss the appeal.
(3) Refuse leave to rely upon ground 3.

Catchwords:
CRIMINAL LAW – appeal – appeal against conviction – sexual touching without consent – attempted sexual intercourse without consent – sexual intercourse without consent – judge alone trial – where appellant claims trial judge erred in accepting complainant’s evidence to required standard due to alleged inconsistency and implausibility in her accounts – where evidence provided by complainant was sufficient to establish that it was open to trial judge to be satisfied beyond reasonable doubt of guilt of complainant – where trial judge not required to give himself warning in accordance with section 165B of the Evidence Act 1995 – whether delay in prosecution created significant forensic disadvantage for appellant
CRIMINAL LAW – appeal – appeal against sentence – whether sentence manifestly excessive – whether sentence failed to apply principles of totality

Legislation Cited:
Crimes Act 1900 (NSW), ss 61I, 61KC, 344A
Evidence Act 1995 (NSW), s 165B

Cases Cited:
Binns v R [2017] NSWCCA 280
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Shanmugam [2020] NSWDC 482
R v Shanmugam (No 2) [2020] NSWDC 555
RP v R [2015] NSWCCA 215
Williams v R [2021] NSWCCA 25

Category: Principal judgment
Parties: Mithun Kumar Shanmugam (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Thorpe (Applicant)
C Young (Respondent)
Solicitors:
The Australian Legal Practice (Applicant)
The Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/17888
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court at Wollongong

Jurisdiction:

Criminal

Citation:

R v Shanmugam [2020] NSWDC 482;
R v Shanmugam (No 2) [2020] NSWDC 555

Date of Decision:

27 August 2020; 17 September 2020

Before:

Judge Haesler SC

File Number(s):

2019/17888

Judgment

HARRISON J: Mithun Shanmugam was found guilty on 27 August 2020 by his Honour Haesler SC DCJ following a judge alone trial on five counts as follows:

Count 1: sexual touching without consent – s61KC(a) Crimes Act 1900.
Count 2: attempted sexual intercourse without consent – s61I/s344A(1) Crimes Act 1900.
Count 3: sexual touching without consent – s61KC(a) Crimes Act 1900.
Count 4: sexual intercourse without consent – s61I Crimes Act 1900.
Count 5: sexual intercourse without consent – s61I Crimes Act 1900.

Mr Shanmugam was sentenced by his Honour on 17 September 2020 to an aggregate term of imprisonment of 5 years with a non-parole period of 3 years.
Mr Shanmugam now appeals to this Court against his conviction and sentence on…

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 Shanmugam v R

Details

AGLC: Shanmugam v R [2021] NSWCCA 125
Case: [2021] NSWCCA 125
Decision Date: 25 June 2021

CaseChat Overview and Summary

In the case of Shanmugam v R, the appellant contested both his conviction and the sentence imposed by the court. The appellant was charged with sexual touching without consent, attempted sexual intercourse without consent, and sexual intercourse without consent. The trial was conducted before a judge alone, and the appellant appealed both his conviction and the sentence, arguing that the trial judge erred in accepting the complainant's evidence and that the sentence was manifestly excessive. The High Court of Australia was tasked with determining whether the trial judge correctly assessed the evidence and whether the sentence imposed was appropriate.

The court considered whether the trial judge erred in accepting the complainant's evidence, particularly in light of the appellant's claims of inconsistency and implausibility. The court held that the evidence provided by the complainant was sufficient to meet the required standard for conviction, as it was open to the trial judge to be satisfied beyond reasonable doubt of the appellant's guilt. The court further determined that the trial judge was not required to give himself a warning under section 165B of the Evidence Act 1995 and that the delay in prosecution did not create a significant forensic disadvantage for the appellant. Regarding the sentence, the court found that the sentence was not manifestly excessive and that the trial judge had appropriately applied the principles of totality.

The High Court of Australia dismissed the appellant's appeal against both his conviction and sentence, affirming that the trial judge correctly assessed the evidence and appropriately applied the principles of sentencing. The court held that the trial judge was not required to give himself a warning under section 165B of the Evidence Act 1995 and that the delay in prosecution did not create a significant forensic disadvantage for the appellant. The court further found that the sentence imposed was not manifestly excessive and that the trial judge had appropriately applied the principles of totality.

Orders