District Court New South Wales Medium Neutral Citation: R v Shanmuganathan [2020] NSWDC 817 Hearing dates: 8 July – 13 July 2020; 16 October 2020 Decision date: 06 November 2020 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Count 1 – sentenced to a term of imprisonment of 2 years 6 months; to be released at the expiration of 1 year 5 months imprisonment to enter a recognizance in the sum of $200 to be of good behaviour for 1 year 1 month Count 2 – sentenced to a term of imprisonment of 18 months; to be released at the expiration of 5 months imprisonment to enter a recognizance in the sum of $200 to be of good behaviour for 1 year 1 month Count 3 – sentenced to a term of imprisonment of 12 months Catchwords: CRIME – sentence – use carriage service to procure person under 16 years for sexual activity – solicit child pornography – transmit indecent communication to person under 16 years – refugee – likelihood of deportation – no prior criminal convictions – time served sufficient. Legislation Cited: Commonwealth Crimes Act. Crimes Act 1914. Criminal Code (Cth) Cases Cited: Gent (2005) 162 A Crim R 29 Holder & Anor v R (1983) 3 NSWLR 245 Imbornone v R [2017] NSWCCA 144 Johnson v R [2004] HCA15; 78 ALJR 616 Kebriti v R [2019] VSCA 275 Mill v R (1988) 166 CLR 59 Minehan v R [2010] NSWCCA 140 Palu v R [2002] NSWCCA 381 Porte [2015] NSWCCA 174 R v Poynder (2007) 171 A Crim R 544 Category: Sentence Parties: Regina (Crown) Mayuratharajan Shanmuganathan (Offender) Representation: Counsel: Mr A Wong (DPP) Mr Park (Offender) File Number(s): 2019/00094471 Publication restriction: No Judgment 1. Mayuratharajan Shanmuganathan appears for sentence today in relation to three offences that are related to one another in time and circumstance. One offence, shortly described, is 'use carriage service to procure a person under 16 years of age for sexual activity'. This is an offence under s 474.26(1) of the Criminal Code (Cth) carries a maximum penalty of 15 years' imprisonment. 2. The second offence is an offence of 'use carriage service to solicit child pornography material'. That is an offence under s 474.19(1) of the Criminal Code. It too carries a maximum penalty of 15 years' imprisonment. The third offence, pursuant to s 474.2A(1) of the Criminal Code, is an offence of 'use carriage service to transmit indecent communication to a person under the age of 16 years'. That carries a maximum term of seven years imprisonment. 3. These offences were variously committed. The first matter, between 17 February 2019 and 26 February 2019 at Elizabeth Bay in New South Wales; the second offence was committed on 17 February 2019 at Elizabeth Bay, at the time of communications between the accused and the person who I will refer to shortly, and the third offence in the indictment presented was committed between 17 February 2019 and 27 February 2019. 4. The pleadings refer to the fact, at least in relation to Count 3, that at the time of the offending the prisoner was 38 years of age. He is a person without prior criminal convictions. He was born on 23 September 1980 and he was born in Sri Lanka. He is a Tamil speaker and identifies ethnically, as I understand it, as a Tamil from Sri Lanka but has a somewhat complex family and religious history. 5. The offender has been in custody since 26 March 2019 when he was arrested by police and the circumstances of his arrest led to the examination of the mobile phone in his possession, which led to the identification of the communications that are the subject of the relevant charges which I will summarise shortly. 6. I will date the sentences that I impose in an effective way from 26 March 2019. But as we are here now in early November 2020 it must be fairly said in a practical way that my hands have been tied in relation to the sentencing of this offender to give full effect to the time he has spent in custody. I blame no‑one for that. He pleaded 'not guilty' on arraignment and his trial proceeded over a number of days to the point where he then changed his pleas to guilty to the three charges with which I am now concerned. 7. That occurred back in July of this year. Then for various reasons the matter was adjourned for an extensive time for the preparation of reports and the like, then the matter came before me last Friday fortnight. I was not able to sentence him on that day. I foreshadowed that I would fix a minimum term no greater than one year and nine months, having regard to the practicality of the situation. The reason it was stood over for three weeks was simply because I had to go to Wollongong the following fortnight and I have only returned to Sydney this week. We, as judges of the District Court, are required largely to try and deal with our part‑heard matters on Friday afternoons. 8. The facts of the matter are set out in an Agreed Statement of Facts. They include facts from the various communications between the prisoner and the recipient giving rise to the particulars of the charges in Counts 1 and 2 relating to a person under the age of 16. The reason for the pleading that the offences relate to a person believed to be under 16, is because the recipient of the messages from the prisoner, via the use of the iPhone through a 'WhatsApp' account, held himself out to be a 15 year old girl. As it turned out he was a 16 year old boy who obviously, if I might be so bold to say so, was playing with the emotions of the prisoner, not that I am blaming the boy for the commission of the offences. But it is a relevant fact in this case that the prisoner was incapable of corrupting the individual involved because the individual involved on the other end of the 'WhatsApp' was not the young woman that he thought he was communicating with at the time. 9. As I said, police arrested the prisoner on 26 March and seized his iPhone. Upon examination, it confirmed both the phone number of the prisoner and a mobile phone number through which the prisoner communicated via the WhatsApp messaging system. The phone number of the recipient of the relevant messages, the subject of the charges, was saved by the prisoner in his phone under a particular name, which I need not read onto the record. 10. At the start of the initial communication that occurred on 17 February the person that the prisoner was communicating with identified herself as a 15 year old girl. I bear in mind, in assessing the objective seriousness of this offending, that the offences concerned are in relation to someone under the age of 16. Of course, a relevant factor is the age or the believed age of the recipient of the messages. The Crown properly brought my attention to the fact that it was but a year or even perhaps a few days short of 16 years in a technical sense. 11. The person who held himself out to be a girl was in fact a 16 year old male who police were able to identify and confirm contact with the prisoner through WhatsApp. He told police that a female friend of his had received an unsolicited message on Instagram from a person she did not know. He began to message that unknown person, pretending to be his female friend's boyfriend, and then ultimately he sent a phone number which was communicated with by the prisoner via the WhatsApp messaging system. 12. The content of the conversation on 17 February was sexually explicit. On multiple occasions the accused described wanting to perform sexual acts upon the person he believed to be a 15 year old female, and proposed to meet up with her to, 'consummate' the relationship at Parramatta Westfield. He told her of things that he would like to do with her of a sexual nature giving rise to Count 1. During this particular conversation, the prisoner asked the person he thought was a young woman, that in fact was a young man, to "spread her legs then show me". This is Count 2, a count of soliciting child pornography. 13. In the course of the conversation and communications with the person he believed to be a young female, the prisoner transmitted videos depicting adult pornography, not child pornography, to the person he thought was a young woman. As I said, the Statement of Facts goes through the range of communications and most of this evidence was before me in the trial before the prisoner pleaded guilty. 14. The prisoner was cooperative with the police and I will come back to the issue of his cooperation as it is relevant in Commonwealth sentencing, but he was not an obstacle to the ultimate detection of these offences. There are some obvious points to make about the character of the offending. Each of the offences to my mind is at the lower end of the range of objective seriousness of offences of this type. There is the age of the person that he believed he was communicating with. There is the fact, which in my view is relevant, that the person he was communicating with was in fact not a female. Therefore it was not possible for the accused to actually procure the person, although he believed he was going to procure that person. I accept the submission the Crown made orally to me that the fact that the young male person actively participated in the communications leading to the offences is not of significance. But it is of significance that it was in fact not a female with whom he was communicating. 15. I bear in mind, the prisoner was not persistent. The offences as they are pleaded, seen as a group, were committed over a limited period of time. Something in the order of nine to ten days. And, as his counsel pointed out in oral submissions and elsewhere, the prisoner did not it seems, pursue the matter after the last date pleaded in February. 16. I also note in relation to soliciting child pornography that the character of the child pornography solicited is very, very different from the type of child pornography that we have to endure and the prosecutors in preparation of their cases have to endure, where we see anonymous figures in a foreign country being violated in circumstances that we cannot fully understand because we only see a part of the violation. As the Crown properly pointed out in fairness, what the prisoner was expecting to see is the person spread "her" legs, and of course the male recipient was not ever going to spread his legs in a way that would assist the prisoner. This did not necessarily involve any nudity. 17. It seems to me that much of this offending is to be seen in the context of what I would see to be the social isolation of the prisoner, for reasons I will come to in a moment, and what I would understand to be, notwithstanding his age, a degree of sexual repression. The prisoner's desire repeatedly to perform sexual acts upon the female has to be seen in the context of this continuing dialogue, occurring in the circumstances I have outlined through the WhatsApp messaging. 18. The prisoner, as I said, had no prior criminal convictions. But he was here on a visa arrangement that of course was not one that could guarantee permanent presence in the community. Being charged with these offences he was bail refused. It is highly likely, that if he had been an Australian citizen or an Australian resident with some permanent connection with a particular address or permanent family circumstances that could be identified, he might have been granted bail until such time as the litigation was completed. 19. I am aware of his background from some evidence of the trial. But a statement that I saw in the course of the trial was tendered without objection in these sentencing proceedings. This was a document prepared, as I understand it, for consideration of his application to be granted refugee status, to use my language, not the technical language of the relevant legislation. The prisoner in that statement talked about his upbringing. He was born in Sri Lanka. He was raised as a Hindu, but whilst in Australia been baptised as a Christian. But the rest of his family practises Hinduism. He has never been married and he does not have children. He lived in Dubai from 2006 to 2012. As a child in the 1990s he experienced, as he expresses in his statement, harassment from the Sri Lankan army. 20. I think Australians are well aware of conflict in Sri Lanka over many years involving the Tamil population, and although it is not a significant matter in the assessment of what the prisoner says about his background, I have personal knowledge of the circumstances of Tamil people in Sri Lanka and some understanding of the discrimination that they have suffered over many years. In fact I remember very distinctly in 2000 doing a trial involving two Tamil interpreters, one working for the Crown and one working for the defence, who I entertained for morning tea one day and we spoke about their experience in Sri Lanka before coming to Australia. One of them was a very distinguished person with very high university qualifications. He was explaining to me that because of his racial background, his Tamil background, he was unable to find employment in Sri Lanka and came to Australia to try and obtain a better future for himself and his family. 21. In his statement, the prisoner talks about people being rounded up in his village, being beaten when he was 16 years of age, and being threatened by representatives of the Sri Lankan military. He spoke of his time in Dubai over a six year period that I have already outlined. He was unaware of what was happening in his home country during his time in Dubai, and he was introduced to Christianity whilst living in Dubai. He returned to Sri Lanka in 2012 but feared for his safety because of his ethnicity, and after returning to his native village he felt that he could not remain in Sri Lanka because of what he perceived to be threats to his life. He came to Australia by boat as arranged by a people smuggler who had been paid by his family. He converted to Christianity when in Australia, living in Melbourne for a period of time and then coming to Sydney. 22. For the purposes of the statement which, as I have said, is concerned with his application for recognition of his refugee status, he speaks of his persecution should he return to Sri Lanka and his fears for his family. Of course these are relevant matters for me to consider, but the truth of the matter is for both practical and strictly legal reasons, ultimately the consequences for him of the orders I make are not a matter that would permit me to fashion the sentence in a manner that might assist his refugee claim. 23. In relation to the circumstances of the offending it must be made clear, as I have earlier pointed out, that the time that he has already spent in custody is a relevant factor in the practical consideration of the fixing of the minimum term. As he has been in custody for so long he will need to be transferred, as I would understand it, to the Immigration Department (it might have another name now) detention, because he will not have a right to remain in Australia, assuming that his temporary visa has been revoked and he is presently on what used to be called a "Justice Bridging Visa". Whether he is successful or not in his application for recognition of his refugee status is not a matter that I can comment upon. Nor can I speak one way or another in respect of that. I do not have enough information and it is not my job to do that in any event. 24. But I should say, having regard to the character of the offending in the context of him being a man, at the time 38 years of age, without prior criminal convictions, despite the fact that a psychologist was unable to assess relevant matters to his attitudes and his background, I do not see in this offending the hallmarks of paedophilia or the hallmarks of a person who presents as a danger to the wider community, as are many offenders who commit offences of this type. As I said in my earlier comments, there was some "leading on" in the matter. Although, the prisoner was an enthusiastic participant. And of course, the prisoner was not persistent in the way that some predators operating through the internet via WhatsApp messaging or other means are. 25. I have taken into account his statement and I note that he has had great hardship in his life. I accept that to be true and it is a relevant contextual matter to the offending as well as his personal circumstances. 26. As I said, a psychologist was retained but was unable to complete the interview for the purposes of making any relevant psychological assessments. This is an unfortunate situation but when he was last before me I was made aware of this fact. The report I had was dated 14 October. I raised with counsel the possibility of getting an up‑to‑date report, but I was told it could not be prepared by today's date. I was naturally concerned in a case such as this that I have psychological information available to me. But it is no fault of the prisoner that this situation has arisen. 27. The psychologist was able to get some matters of history, some of which I have touched upon. In the course of the interview he was cooperative and he showed no evidence of psychiatric disturbance. He confirmed a general history similar to that set out in his statement. He told the psychologist his family are unaware of his current criminal charges. 28. He spoke of his background in Sri Lanka so far as his education was concerned, getting to the equivalent of what we would call here in New South Wales year 10. He has limited English. He had trouble in Australia learning English and failed some of his exams because they were "teaching too fast". 29. He has had a background of regular employment, working in Dubai and in difficult conditions there. He has worked in the rural sector and he has worked as a cleaner. He had trouble finding employment in Australia up to the date of his arrest, but his problems with the language were a bar to that. He denied any behavioural issues at school or in his wider life, and his criminal history, at least in Australia, seems to confirm that. 30. The psychologist said of his cognitive function that he appeared to have performed poorly at school insofar as not being able to continue his secondary education, and has struggled with the English language and struggled to maintain employment. But ultimately, whilst he may have a cognitive impairment which may affect functioning or learning, she could not form a proper opinion on this matter, although he would benefit from further assessment. I have taken that into account, but it is, in the context of what it was prepared for, that is providing information of a psychological nature, of limited benefit. 31. The Crown very helpfully in its submissions, as does the defence, reminds me of my duty in sentencing someone under Commonwealth Law, I am to have regard to Part 1B of the Commonwealth Crimes Act. Of particular significance, of course, is s 16A(2) of that Act. I will come back to that aspect of the matter shortly, but ultimately it is correct to say that the requirements of s 17A of the Act have to be recognised and this is a case where I have no other option other than to impose a term of imprisonment. I have had regard to the helpful information in the Crown's annexure summarising legislative provisions. 32. Both the Crown and the defence took my attention to some decisions of high principle relating to the sentencing of offenders in respect of offences involving communication, usually via the internet, with people under the age of 16 years, the transmission of indecent material being the transmission of "child pornography". I have already pointed out that this character of child pornography falls way short of what, as I said earlier, we are to endure in relation to these offences with particular offenders. Multiple, hundreds, sometimes thousands of videos involving grown adults having penile penetration of young female children under ten. I once was forced to watch a video of a man having penile penetration of a three year old girl, in Australia mind you, that he filmed for himself, in the knowledge that the little boy, her brother who was two, sitting behind her, was going to be killed by the man within half an hour of the act of intercourse. 33. So I have had the experience of seeing the worst of these types of matters and what the prisoner in relation to Count 2 is encouraging the supposed young female to do is offensive in its terms, but way less serious than much of the child pornography offences to which the legislation is concerned. 34. The defence reminds me of the decision of Minehan v R [2010] NSWCCA 140, which sets out quite a number of important principles. The Crown draws my attention to decisions such as R v Porte [2015] NSWCCA 174 and R v Gent (2005) 162 A Crim R 29, an earlier decision also cited by the Crown. Those cases, of course, along with Minehan, involve far more serious cases than I am concerned with here, with much greater depth and breadth of child pornography and child abuse material, and activity over a lengthy period of time. In the case of Porte many thousands of images being held by that person. But they set out general principles which are summarised by the Crown and which are not in dispute. 35. Reflecting back then to Pt 1B, by reference to the particular matters that are set out in what could be called the "checklist", I have had regard to the nature and circumstances of the offence. There are no other offences to be taken into account. Each offence is part of a "course of conduct" to a limited extent, but over a very limited period of time, a matter of days. Many of the comparative cases identified by the Crown, although there was one exception to this, where offences were committed over months by the relevant offenders. 36. I am required to give weight to the need for general deterrence pursuant to s 16A(2)(ja) of the Commonwealth Crimes Act, and that goes without saying because in relation to the perpetration of child pornography encouraging people under 16 to perform sexual acts and the like, there is a need to ensure that other people are discouraged from this conduct. There is some weight to be given, of course, to specific deterrence as required under s 16A(2)(j), but this particular offender does not, to my mind, require great weight to be given to specific deterrence given his background. 37. I note the Crown cites R v Poynder (2007) 171 A Crim R, a decision that I gave, that the Commonwealth Crown unsuccessfully appealed. Mr Poynder was in fact a solicitor, who had turned up at an address in Redfern with a pocketful of condoms expecting to find a 15 year old girl. That is a case of going a number of steps further than this prisoner, but again the principles in Poynder are noted and applied, and I am pretty sure that I applied them at the time of the sentencing. 38. I have had regard to the fact that we do not have a particular victim here, so it is not a specific issue that I have to take into account. One of the matters I need to have regard to, is the degree to which the prisoner has shown contrition for the offence. This was a matter not of great importance ultimately in the sentencing submissions. His pleas of guilty are some evidence of contrition and I recognise that, but the Crown case against him was completely overwhelming. The circumstantial evidence to link him to the WhatsApp account was overwhelming. He was responsible for those messages, as his pleas acknowledge, so the timing of the plea does not show contrition to a great extent. But we do not have here a particular aggrieved victim in respect of whom expressions of contrition from the prisoner might form greater salience in the sentencing equation if they were to be taken into account. 39. I take into account the fact of the plea of guilty. The timing of the plea, of course, was well into the trial, in circumstances where the Crown case was strong. The strength of the Crown case I appreciate from many authorities is not a relevant matter in assessing the utilitarian benefit of the plea. But the utilitarian benefit of the plea is so slight, given the timing of it, that it seems to me it is not a proper matter for a discrete discount. But it is a matter in my view of some mitigation that he has pleaded guilty, reflecting, as I said, some evidence of contrition and some facilitation of the course of justice. 40. I accept, as it is acknowledged by the Crown, that there was cooperation with law enforcement agencies in the investigation of the matter. I am required to make sure the prisoner is adequately punished. I am required to have regard to his character, antecedents, cultural background, his age, physical and mental condition. Of course, his mental condition is really not exposed in the material. I am required to have regard to his prospects of rehabilitation. I see no reason not to regard the prisoner as a person with good prospects of rehabilitation having regard to the circumstances in which this offending occurred. 41. The Crown reminds me of the requirement to pay heed to the maximum penalties and I do that, and that is one of the reasons I distinguish between the sentences imposed in relation to Counts 1, 2, and the sentence I impose in relation to Count 3. Counts 1 and 2 both carry maximum penalties of 15 years' imprisonment. Count 3, as I said earlier, seven years' imprisonment. 42. But his learned counsel submitted to me, and I accept, that in the circumstances one might regard Count 1 as more serious than Count 2, and of course each of those offences more serious than Count 3. The material sent to the 16 year old boy, being adult pornography, is material, I would assume, easily accessed, it not being illegal as such to send adult pornography as a rule between consenting individuals. 43. The Crown's submissions in relation to matters such as cooperation and contrition are very fair and I accept that that is so. The Crown pointed out that a person with no criminal history might find that particular factor with less or limited weight in offences of this type, I accept that as a general principle. But his criminal history, or lack of it, goes to explain findings in relation to other matters such as his prospects of rehabilitation and the like. I particularly note in relation to the issue of rehabilitation in the terms of s 16A(2AAA) of the Crimes Act 1914. I agree with the submission of the Crown that it is not required to make additional inquiries in relation to this matter. 44. As it turns out some of the submissions of the Crown in respect of hearsay statements in psychological and psychiatrist reports and matters relating to the weight to be given to such hearsay representations are discussed many times before in the cases cited by the Crown, in decisions such as R v Palu [2002] NSWCCA 381, and Elfar as referred to by the Crown and cited in the decision of Imbornone v R [2017] NSWCCA 144, are obviously correct, but of little significance in the light of there being no particular finding by the psychologist. 45. I am required under s 16E(2)(a) to take into account the time in custody. 46. The Crown very helpfully provided a range of supposedly comparative cases. I am not going to cite the references, but I have read those cases, some of which I was already familiar with. There are some decisions from Victoria and decisions from New South Wales. It might be fairly said, if I be so bold to say so, despite the fact that many of the appeals are dealing with offences not necessarily common to the offences with which I am now concerned, that the offending represented in the facts of those matters identified by the Crown is more serious than the offending with which I am concerned here. Many of them involve live victims who were the subject of relevant communications by use of a carriage service. Many of them involved offending committed over an extended period of time much greater than the period of time here, although there is one exception to that. 47. That is a decision of Kebriti v R [2019] VSCA 275 where a person pleaded 'not guilty'. But the facts themselves are more serious because it does involve a live victim and it does involve the applicant, over a relatively short period of time, doing things like transmitting an image of his penis to an 11 year old girl, who communicated that she was 12 years of age. 48. The main thing that emerges from the comparative sentences, again I do not need to cite the references any more than I have, is that it seems to me the sentences I am imposing by reference to what has been imposed or confirmed by courts of superior jurisdiction in New South Wales and Victoria and elsewhere, are at the higher end of the scale for offences of this seriousness. But that having been said the reality is I have got very little option, given the time the prisoner has spent in custody. 49. Returning to the offender's submissions on sentence I have noted what has been put to me in the context of the timing of the offending, which I have already referred to, the lack of real planning in the offending, a single person involved in the offending, that is the 16 year old boy, comments made by prisoner of course, conceded to be abhorrent and "revolting". But there were no threats of physical harm and he was more of a begging character, to quote his counsel, and a pesterer, or a person pestering the other person rather than a person insistently asserting the desire for sexual activity. No payment was involved, the prisoner acted alone. The matters identified, for example, out of Minehan, cited as authority setting out some relevant criteria, are noted. 50. I have noted the prisoner's subjective circumstances and summarised them. I believe from the material available by reference to some matters raised by the Crown in its written submissions about psychological and psychiatric matters, that the prisoner's account of his experiences in Sri Lanka are not "confirmed" as such. But it is to be fairly said, that there is some understanding within Australia of the circumstances of Tamil people in Sri Lanka as a general rule and ultimately I have no reason to doubt the essence of what the prisoner said, that he fled from Sri Lanka for fear of his safety. He came here to avoid consequences that he believed could befall him, having regard to his personal experiences. 51. I have dealt with the issue of his prospect of rehabilitation. I fixed a minimum term that seems to me to be the minimum period I can fix by reference to the time that he has spent in custody. I have allowed a few extra weeks in custody to be truthful, because he will require some assessment before he transfers across to Commonwealth care. 52. I accept that he has no close family or relatives in Australia, thus he will be somewhat isolated in custody and this will be a hardship for him. He speaks limited English, as I have earlier pointed out. He would benefit from community based rehabilitation if that was available to him. But whether he will receive that in Australia I am unable to say given his status as a non‑citizen and a non‑resident. 53. Counsel for the prisoner drew my attention to the objective fact that the person with whom he was communicating made no particular complaint about the prisoner's conduct, but was ultimately located by the police and gave details that confirmed what was available from the record of the WhatsApp chats. 54. I believe I have taken into account in summary what has been put to me by both parties. The submissions of both the Crown and the defence were to my mind fair and reasonable having regard to the facts of the case. 55. The prisoner is a person who obviously faces an uncertain future at the present time. There is nothing I can do to ameliorate that particular situation. This will be a matter ultimately for Commonwealth authorities to consider having regard to all of his personal circumstances. 56. I also finally note that I have structured the sentences to reflect what I regard as the totality of the criminality, and by regard to totality of the criminality I am referring to principles that are laid down, for example, in the High Court judgments of Mill v R (1988) 166 CLR 59, and Johnson v R [2004] HCA15; 78 ALJR 616. There are many decisions relating to proper consideration of totality principles. But one such judgment which to my mind neatly summarises what is required in a situation where I am dealing with three counts for example, multiple counts, is the judgment of Street CJ in the reported decision of Holder & Anor v R (1983) 3 NSWLR 245 where, without me quoting it again, the learned Chief Justice articulated the practical application of the principle of totality in effectively telescoping sentences to give practical effect to the totality principle, not accumulating sentences like is done in places like Texas. People do observe lengths of imprisonment that do not properly reflect what we in Australia would regard as proper application of totality principles. 57. Thus I will move to the orders. Madam Crown and Mr Park, if you feel that I have strayed in some technical sense do not hesitate to tell me. 58. Mr Shanmuganathan, in relation to Count 1 you are convicted. You are sentenced to a term of imprisonment for two years six months, without hard labour, to commence 24 June 2019 and expiring on 24 December 2021. I direct you be released at the expiration of one year five months' imprisonment, expiring on 24 November 2020 upon you entering a recognizance pursuant to s 20(1)(b) of the Commonwealth Crimes Act yourself in the sum of $200 to be of good behaviour for a period of one year one month from 25 November 2020, expiring on 24 December 2021. 59. Now that order I made commencing on 25 June 2019, I may have said 24 June, that is to be seen in the context of the sentence for Count 3. In relation to that sentence you are sentenced to a term of imprisonment of 12 months to commence 25 March 2019, expiring on 24 March 2020. 60. In relation to Count 2 you are sentenced to a term of imprisonment of 18 months without hard labour to commence on 25 June 2020, to expire on 24 December 2021. I direct you be released at the expiration of five months imprisonment expiring on 24 November 2020, upon you entering a recognizance pursuant to s 20(1) of the Commonwealth Crimes Act, yourself in the sum of $200 to be of good behaviour for a period of one year one month from 25 November 2020, expiring 24 December 2021. 61. As with Count 1, a condition of that recognizance is that you are to appear to receive sentence, if called upon to do so, at any time in respect of any breach within the said period. 62. I am not fixing, Madam Crown, Mr Park, any conditions of supervision because they do not seem to be practical in the circumstances. 63. BARROS-GONCALVES: There's just one small error, Count 3, you commenced it on 25 March. He was arrested on the 26th. 64. HIS HONOUR: Was he? 65. BARROS-GONCALVES: That should be the commencement date. 66. HIS HONOUR: I see, yes. 67. BARROS-GONCALVES: Very, very tiny. 68. HIS HONOUR: He's got the benefit of a day, Madam Crown, but I'll change Count 3 to 26 March, expiring on 25 March 2020, so it's effectively one day less than what I fixed. But my main question was, Madam Crown, reading the very helpful material you provided me, as I can re-state sentences I can fix a fixed term without having to fix a recognizance release order in respect of that sentence can I not? It's a sentence of greater than six months, it's a sentence less than three years. 69. BARROS-GONCALVES: Three years, yes your Honour. 70. HIS HONOUR: But it's a sentence that's subsumed into the other two sentences‑‑ 71. BARROS-GONCALVES: Yes, your Honour. 72. HIS HONOUR: ‑‑so there's no point, is there? I can do that, can I? Right, fine, I don't want to exceed my power. Mr Park, have you followed that? 73. PARK: Yes, your Honour. 74. HIS HONOUR: So explain to your client that he will be eligible for release, subject to - well it's too late now, I guess, by the time he appeals to the Court of Criminal Appeal it's all over, I guess, but the Crown might appeal. But on the other hand, putting aside the rights of appeal, I have tried to structure the sentence in effect to allow him to be released fairly soon, but not today or tomorrow, simply because I think there's time that needs to be taken to sort out where he's going to go. 75. PARK: Yes, your Honour. 76. HIS HONOUR: On the current orders you will be released to Commonwealth detention on 24 November this year. Today is 6 November, so that's in about a fortnight's time. Right, thank you, you're excused, sir. ********** 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: 25 January 2021