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Sharma v R

Sharma v R

Case [2022] NSWCCA 190 15 September 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sharma v R [2022] NSWCCA 190
Hearing dates: 26 August 2022
Date of orders: 15 September 2022
Decision date: 15 September 2022
Before: Beech-Jones CJ at CL at [1]
Adamson J at [8]
Bellew J at [9]
Decision: (1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords:
CRIMINAL LAW – Offences – Sentence – Appeal – Whether sentence manifestly excessive – Cause to take intoxicating substance to enable the commission of an indictable offence – Sexual intercourse without consent – Intentionally recording intimate images without consent – No specific error asserted – Where manifest excess was said to be reflected in the application of the discount to reflect the applicant’s pleas of guilty and sentences imposed in other cases of similar offending – No error in the application of the discount – Where it was expressly conceded that the objective and subjective circumstances in the cases relied upon for comparative purposes were distinguishable from the present case on various bases – Serious offending – Findings of sentencing judge unchallenged – Leave to appeal granted – Appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
BB v R [2021] NSWCCA 283
Chartres-Abbott v R [2021] NSWCCA 239
Clarke v R [2021] NSWCCA 248
Dinsdale v The Queen [2000] 202 CLR 321; [2000] HCA 54
DL v R [2020] NSWCCA 164
Doe v R [2013] NSWCCA 248
Greenwood v R [2014] NSWCCA 64
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
JM v R [2014] NSWCCA 297
Kelly v R (2017) NSWCCA 256
Lee v R [2016] NSWCCA 66
Markarian v The Queen [2005] 228 CLR 357; [2005] HCA 25
Moodie v R [2020] NSWCCA 160
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Reyes [2005] NSWCCA 218
Samadi v R; Djait v R [2008] NSWCCA 330
Shi v R [2020] NSWCCA 250
Smith v R [2020] NSWCCA 181
Vaiusu v R [2007] NSWCCA 71
Zahorsky v R [2013] NSWCCA 268

Category: Principal judgment
Parties: Maanau Sharma – Applicant
Regina – Respondent
Representation:
Counsel:
P Doyle – Applicant
S Traynor – Respondent
Solicitors:
David Ryan Legal – Applicant
C Hyland, Solicitor for Public Prosecutions NSW – Respondent

File Number(s): 2019/167136; 2019/307750
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

23 October 2020

Before:

Her Honour Judge Baly SC

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant formed a relationship with the victim (KB) through a dating app. KB suffered from Trigemina Neuralgia, as a consequence of which she experienced episodic pain. The applicant told her that he could provide her with analgesic medication but…

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 Sharma v R

Details

AGLC: Sharma v R [2022] NSWCCA 190
Case: [2022] NSWCCA 190
Decision Date: 15 September 2022

CaseChat Overview and Summary

In the case of Sharma v R, the appellant appealed against the sentence imposed upon him by the sentencing judge in the Supreme Court of Victoria. The appellant was found guilty of several serious offences, including causing another person to take an intoxicating substance to enable the commission of an indictable offence, engaging in sexual intercourse without consent, and intentionally recording intimate images without consent. The appellant's appeal focused on the alleged manifest excess of the sentence imposed.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The appellant argued that the sentence was excessive due to the application of a discount for his pleas of guilty and the sentences imposed in other cases of similar offending. However, the court found no error in the application of the discount. It was expressly conceded by the appellant that the objective and subjective circumstances in the cases relied upon for comparative purposes were distinguishable from the present case on various bases.

The court found that the sentencing judge had carefully considered the appellant's offending and the relevant aggravating and mitigating factors. The court held that the sentence imposed was not manifestly excessive, and the appeal was accordingly dismissed. The court's findings of fact and the assessment of the seriousness of the offending were unchallenged, and there was no specific error asserted in the appeal. Therefore, the appeal was dismissed, and the original sentence stood.

Orders