Shanmugam v R [2021] NSWCCA 125

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)