Muniandy v R [2021] NSWCCA 305

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Muniandy v R [2021] NSWCCA 305 Hearing dates: 1 December 2021 Date of orders: 1 December 2021 Decision date: 16 December 2021 Before: Harrison J at [1]; Davies J at [2]; Wright J at [3] Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentence imposed by the trial judge on 27 April 2021. (4) In lieu of that sentence, sentence the applicant to a term of imprisonment for 12 months commencing on 25 April 2021 with a non-parole period of 7 months expiring on 24 November 2021. (5) Order the immediate release of the applicant. Catchwords: CRIME — appeals — appeal against sentence — application for leave to appeal — misapplication of principle — whether sentencing judge erred by holding that intensive correction order was too lenient when considering sentencing options — whether sentencing judge erred by holding that no punishment in addition to supervision could reasonably be imposed by way of conditions under intensive correction order in circumstances where supervision would be suspended by Community Corrections — manifest excess — where patent error not identifiable but error nevertheless inferred from all the circumstances — re-sentence — special circumstances on the basis of youth, previous good character, language difficulties and lack of family support CRIME — violent offences — detain for advantage — circumstances of aggravation Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), s 82A Crimes (Administration of Sentences) Regulation 2014 (NSW), cll 187, 189I Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 66, 67, 68, 69, 72, 73, 73A Crimes Act 1900 (NSW), ss 59, 86 Criminal Appeal Act 1912 (NSW), ss 5, 6 Cases Cited: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 Elphick v R [2021] NSWCCA 167 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v Cahill [2015] NSWCCA 53 R v Fangaloka [2019] NSWCCA 173 Category: Principal judgment Parties: Vinothraj Muniandy (Applicant) Regina (Respondent) Representation: Counsel: G Wendler (Applicant) G Newton (Respondent)