District Court New South Wales Medium Neutral Citation: R v Shanmugam (No 2) [2020] NSWDC 555 Hearing dates: 17 September 2020 Decision date: 17 September 2020 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of 5 years with a non parole period of 3 years. Catchwords: Crime: Sexual touching Without Consent - Attempted sexual intercourse without consent - Sexual intercourse without consent Sentencing – relevant factors – sentence after trial - victim impact – intoxication - certainty of deportation - prior good character - one off event - unlikely to reoffend Legislation Cited: Crimes Act 1900 Crimes (Administration of Sentences) Act 1999. Crimes (Sentencing Procedure) Act 1999 Migration Act 1958 (Cth) Cases Cited: Barbaro v The Queen (2014) 253 CLR 58 Bullock v R [2016] NSWCA 131 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Guden v R [2010] VSCA 196 He v R [2016] NSWCCA 220 Hili v The Queen (2010) 242 CLR 520 Kwon v R [2004] NSWCCA 256 Mill v The Queen (1988) 166 CLR 59 Muldrock v The Queen (2011) 244 CLR 120 Nguyen v The Queen [2016] HCA 17 R v Chi Sun Tsui (1985) 1 NSWLR 308 R v Edwards (1996) 90 A Crim 510 R v Hull [2016] NSWSC 634 R v J.R.B [2006] NSWCCA 371 R v Marcial [2011] NSWDC 119 R v Mirazee [2004] NSWCCA 315 R v Pham [2005] NSWCCA 94 R v Shanmugam [2020] NSWDC 482 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v Tonari [2014] NSWCCA 232 Shrestha v The Queen (1991) 143 CLR 78 Tepania v R [20018] NSWCCA 247 The Queen v Pham [2015] HCA 39: (2015) 256 CLR 550 Vasilevski v R [2019] NSWCCA 277 Category: Sentence Parties: Mithun Kumar Shanmugam (the offender) Director of Public Prosecutions Representation: Counsel: Mr B Hart (for the accused) Mr D Noll (for Director of Public Prosecutions) Solicitors: A.R.Yates & Co Solicitors (for the accused) File Number(s): 2019/00018999 Publication restriction: Pursuant to s578A Crimes Act 1900 there is to be no publication of the complainant's name or anything that may lead to her identification. Pseudonyms have been used in my trial judgment and identifying information has been removed from this judgment to comply with the statute. Sentence Introduction 1. On 27 August 2020 after a judge alone trial I found Mithan Kumar Shanmugam guilty of five serious offences all of which occurred one morning in early 2019: R v Shanmugam [2020] NSWDC 482. He must now be sentenced for those crimes. Facts for sentence 1. In early January 2019 after a belated work Christmas party Shanmugam, the complainant and a female workmate ended up at the complainant's home. They all slept in the same bed. Although the complainant and Shanmugam had cuddled earlier in the night there was no expectation by either of them at the time they retired to sleep that sexual relations would occur. 2. The complainant had told her other friend that she was not concerned about Shanmugam staying in her bed as she had told him she didn't want a relationship and her girlfriend was there. She told her she trusted Shanmugam as they were good friends and that she treated him as "one of the girls:" Trial Transcript p. 8. 3. During the night the female workmate got up to vomit in the bathroom. The complainant woke and saw Shanmugam masturbating. He then rolled toward her and lay against her in the spooning position. He was still masturbating, with his hand against her night shorts; she was facing the wardrobe pretending to be asleep: Count 1. 4. He then pulled his penis further out of his boxers, pulled her night shorts to the side and tried to, with force, to press his penis into her anus. It was painful. She brushed him away as quickly as she could: Count 2. 5. After she brushed him off she rolled onto her back to try and stop him from repeating what he had done. He then put his hands down the front of her pants and rubbed the exterior of her vagina with his hand: Count 3. She brushed him away, rolled onto her side. She ignored him. She pretended to be asleep. She was in shock. She didn't know what to do. 6. He then got into the spooning position again. He pulled her night shorts to the side and tried to insert his penis into her vagina. He got it about halfway in but she moved and brushed him away quite abruptly: Count 4. She kept her eyes closed. She could feel the tears rolling down her face at that point. 7. She then felt and heard him reach over the edge of the bed. She heard a sound like he was trying to open a condom wrapper. During that time she got her phone from under her pillow and quickly SMS messaged her friend, "Help." 8. She then heard her friend cough from the ensuite bathroom. She pretended to wake. She said, "She's been in the bathroom a while." The accused said, "No, she will be OK," She lay back down and he inserted his penis again but this time it went all the way in. When he put his penis inside her she felt the condom: Count 5. She brushed him off and jumped up, and went to get her friend from the bathroom. She said she complained to her that morning and later spoke to another friend, who told her to "confront him." She sent Shanmugam an SMS: Trial Exhibit 3. His response damned him: see trial judgment at [60]. 9. There are five counts for sentence: 1. Sexual touching Without Consent: s 61KC(a) Crimes Act 1900; maximum penalty 5 years imprisonment. 2. Attempted sexual intercourse without consent; s 61I/s 344(1) Crimes Act 1900: Maximum penalty 14 years. 3. Sexual touching Without Consent: s61KC(a) Crimes Act 1900; maximum penalty 5 years imprisonment. 4. Sexual intercourse without consent; s 61I Crimes Act 1900: Maximum penalty 14 years- standard non-parole period 7 years. 5. Sexual intercourse without consent; s 61I Crimes Act 1900: Maximum penalty 14 years- standard non-parole period 7 years. Maximum penalty 1. Careful attention is required to the maximum penalties and standard non-parole periods where applicable. Here, both provide sentencing measures to be balanced with all other relevant factors. A process of comparing and contrasting the actual offence with an abstract one is not necessary nor is it necessary to identify features of the offence which were or were not taken into account when considering the role of the standard non-parole period; s.54B(6); Tepania v R [20018] NSWCCA 247 at [103] to [120] 2. I am required to give content to the standard non-parole period. However, as the High Court in Muldrock v The Queen (2011) 244 CLR 120, made clear I cannot engage in a staged approach to sentencing: at [28]. Accordingly, my findings where an offence lies on a range does not compel any one result. 3. All these crimes occurred within a short space of time. They occurred in the complainant's home; where she was entitled to feel safe and secure. All involved the violation of the friendship the complainant thought she had with Shanmugam and the trust she showed in him by allowing him to sleep in her bed after the party. His actions against her were persistent. The acts escalated in their severity. The attempt offence caused her pain. The acts of intercourse were of very brief duration. One brief act of penile vaginal intercourse was unprotected as a condom was not used. As with most such crimes they were invasive and degrading acts of personal violence, one reason for the high maximum penalties and for the s 61I offences, the standard non-parole period. 4. The briefness of the acts and other circumstances do not place any these offences in the middle of the range taking into account only objective features. Aggravating features, such as physical harm, ejaculation and threats, were absent. Despite the seriousness of what occurred the s 61I offences fall more toward the bottom of the range of what was none the less serious offending. Victim impact 1. In her Victim Impact Statement, which the complainant read today, she told me about how her ability to trust others had been significantly affected by what was done to her: Exhibit A - sentence. She has lost friends and work opportunities. She has relocated. She has been seeing a counsellor for help moving forward and to deal with stress, loss of sleep, loss of confidence and anxiety. She sees herself as a survivor but recognises the road to a "new normal" will be long and challenging. Sadly these reactions are all too common. Subjective case 1. Shanmugam gave evidence at his trial. He denied and continues to deny the offending. He is not to be punished in any way for exercising his right to trial but he can gain no benefit from any evidence of remorse or contrition. 2. He had no criminal convictions. He has complied with his strict bail conditions. 3. He is now 24 years old and has successfully completed a Bachelor in Logistics and Supply Chain Management at the University of Wollongong. He has suffered anxiety and depression while he awaited his trial and sentence; a not uncommon situation: Exhibit 2 – sentence. 4. He is a citizen of India. He is subject to a criminal justice stay visa and successfully appealed a decision to cancel his bridging visa: Exhibit 3 – sentence. After he serves his sentence he will return to his home in India in disgrace. 5. Both before and after the offending he earned and kept the respect of others in our community. His work references and trial witnesses who knew him referred to him as hard working, courteous and reliable. 6. I heard today from 2 female friends and work mates. They described him as supportive courteous, kind, respectful and thoughtful. He has never made them feel uncomfortable. They and other friends remain supportive of him. The person they know does not fit with the person who committed these crimes. I note however that until these crimes the complainant held the same opinion of Shanmugam. 7. Shanmugam has no family support in this country and given the COVID-19 restrictions that apply he will be unable to have visits from friends in Australia. More importantly, he will be unable to interact with his family in India in any meaningful way for the foreseeable future. While these hardships must be considered, they are shared by most non-citizens who are imprisoned, they are not exceptional: R v Edwards (1996) 90 A Crim 510. The offender will suffer additional risk and anxiety should Covid-19 enter our gaols as he does not qualify for early parole: s276 Crimes (Administration of Sentences) Act 1999. Intoxication 1. Shanmugam had been drinking and smoking marijuana that night; far more than he would ordinarily have done. He was sleeping next to a woman for whom he had an attraction. Those facts help explain, but do not excuse, his offending. As he told me in evidence during the trial he was well aware of the law and rules of behaviour requiring consent before any sexual interaction. Tiredness and an alcohol and marijuana induced a lack of inhibition help explain the impulsivity of the offence and why a person of otherwise good character did what he did. But intoxication cannot mitigate these sentences; s21a (5) (5AA) Crimes (Sentencing Procedure) Act 1999. It still remains relevant here as it helps me understand his state of mind and his inability to exercise sound judgment. It is also relevant to his prospects of avoiding future reoffending. Although not subject of sworn evidence I accept that he will be very cautious about ever drinking or smoking marijuana in the future. Deportation 1. There is authority to the effect that the prospect of the offender's possible deportation is irrelevant to sentencing: R v Chi Sun Tsui (1985) 1 NSWLR 308; R v Pham [2005] NSWCCA 94; He v R [2016] NSWCCA 220. It is certainly irrelevant to the structure of the sentence; Shrestha v The Queen (1991) 143 CLR 78; R v Mirazee [2004] NSWCCA 315. However, as the Victorian Court of Appeal has noted those authorities relate only to fixing of a non-parole period for a custodial sentence: Guden v R [2010] VSCA 196; see also Kwon v R [2004] NSWCCA 256. Accordingly, the prospect of the offender being deported because of a sentence imposed can be relied on in mitigation of sentence but there needs to be some basis for such a finding. 2. Here there is evidence that Shanmugam's bridging visa was cancelled after he had been charged although that decision was set aside on appeal: [2020] AAT case no 1930280, 9 March 2020. The basis for the decision was that he had also been issued a criminal justice stay visa pending the resolution of this trial. 3. Section 501(3A) Migration Act 1958 (Cth) now provides that the Minister must cancel a visa if the Minister is satisfied the person does not pass the character test or is serving a sentence of full-time imprisonment. Given his convictions Shanmugam would not pass that test. Accordingly, the certainty of cancellation of the offender's visa and the inevitability of his deportation are matters for proper consideration on sentence: R v Hull [2016] NSWSC 634. Submissions 1. Shanmugam's Counsel Mr Hart and Mr Noll, Solicitor Advocate for the Director of Public Prosecutions both provided helpful written and oral submissions. I do not intend to explicitly refer to each of the matters raised in any detail but I have considered and addressed them in coming to my determination as to the appropriate sentence. Other cases 1. I have had regard to Judicial Commission statistics and to the cases set out in Mr Hart's written submissions: R v J.R.B [2006] NSWCCA 371; R v Marcial [2011] NSWDC 119; Vasilevski v R [2019] NSWCCA 277. I have also had regard to other cases such as Bullock v R [2016] NSWCA 131 and R v Tonari [2014] NSWCCA 232. The consistent application of principle must always be considered. The guidance offered by appellate courts and other decisions of this court is always welcome. The pattern of past sentences for an offence may serve as a yardstick or help establish a range, however each case and each offender is individual: Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74] and The Queen v Pham [2015] HCA 39: (2015) 256 CLR 550 where Bell and Gaegler JJ, said "…sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.'' at [47]. Structure 1. I am required to indicate an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of Shanmugam's offending behaviour: Mill v The Queen (1988) 166 CLR 59 at 62-63; Nguyen v The Queen [2016] HCA 17. Although one sentence could not encompass the criminality of all that occurred there can be considerable concurrence as each count was part of the one short event; each had some common features, the purposes of sentencing apply to each offence and those purposes overlap: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41. 2. My findings in relation to objective seriousness and the subjective case for the offender provide reasons for departure from the standard non-parole periods and justify a finding of special circumstances. That said, the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [59]. Synthesis 1. Shanmugam, in my assessment, is at low risk of re-offending. His background, age, relative immaturity, combined with the fact that he had no prior record and that this would be his first period of incarceration far away from family, warrant a significant element of leniency. But mitigating circumstances can go only so far. Objectively serious offences were committed. 2. Shanmugam offended against his friend and breached her trust in him. His actions were not wanted and he well knew this. As a consequence of his crimes he will lose his liberty and his dreams of a life in Australia are in ruins. He must spend a period in gaol. For crimes such as these retributive sentences are demanded so that others come to understand the consequences of acting against others without their consent. The sentence must also operate to ensure that dignity of the complainant is vindicated and express the community's disapproval of this serious offending. Orders 1. I record a formal conviction on each count. 2. There are five counts for sentence in relation to each I indicate the following sentences: 1. Sexual touching Without Consent - 3 months 2. Attempted sexual intercourse without consent - 2 years 3. Sexual touching Without Consent - 1 year 4. Sexual intercourse without consent - 4 years; non-parole period 2 years 5 months 5. Sexual intercourse without consent - 4 years 3 months; non-parole period 2 years 6 months 1. Having found special circumstances and considered issues of accumulation, concurrency and totality there will be an aggregate sentence of 5 years imprisonment with a non-parole period 3 years. 2. The sentence will commence today 17 September 2020. The offender will be eligible for consideration for release to parole on16 September 2023. Total sentence expires on 16 September 2025. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 September 2020