Application by Paul Rajendran pursuant to s.78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 270

Supreme Court New South Wales

Medium Neutral Citation: Application by Paul Rajendran pursuant to s.78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 270 Hearing dates: On the papers Decision date: 18 March 2014 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Application granted. Matter referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. Catchwords: CRIMINAL LAW - application for inquiry into sentence under s.78 Crimes (Appeal and Review) Act 2001 - whether doubt or question as to mitigating circumstance - whether sentence infected by Muldrock error - sentence after trial - open to conclude that two-stage process applied - doubt or question demonstrated - matter referred to Court of Criminal Appeal Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Rajendran v R [2010] NSWCCA 322; 206 A Crim R 316 Sinkovich v Attorney General of NSW [2013] NSWCA 383 Texts Cited: --- Category: Principal judgment Parties: Paul Rajendran (Applicant) Regina (Respondent) Representation: Counsel: --- Solicitors: Legal Aid NSW (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2009/39792 Publication restriction: ---

Judgment 1JOHNSON J: The Applicant, Paul Rajendran, applies for an inquiry into his sentence under s.78(1) Crimes (Appeal and Review) Act 2001. The application seeks the referral of his matter to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. 2This application is one of several made by persons who have been convicted and sentenced for offences carrying a standard non-parole period, who have unsuccessfully appealed against the conviction and/or sentence to the Court of Criminal Appeal, and now seek a further hearing in the Court of Criminal Appeal on the basis that there is a doubt or question as to "mitigating circumstances" in the case, being the suggested infection of the original sentencing decision by Muldrock error: Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 3The submissions of the New South Wales Attorney General challenged the Applicant's submission that Muldrock error may constitute a mitigating circumstance for the purposes of an application such as this. However, the Court of Appeal rejected that argument in Sinkovich v Attorney General of NSW [2013] NSWCA 383. 4The Attorney General submitted further that the Applicant had not demonstrated a foundation for any doubt or question as to a mitigating circumstance in the Applicant's case based upon suggested Muldrock error. 5The Applicant was convicted after trial of an offence of having sexual intercourse without consent contrary to s.61I Crimes Act 1900, an offence punishable by a maximum penalty of 14 years' imprisonment with a standard non-parole period of seven years. 6On 15 April 2010, Payne DCJ sentenced the Applicant to a term of imprisonment of seven years and six months with a non-parole period of five years. The non-parole period expires on 10 August 2014. 7On 17 December 2010, the Court of Criminal Appeal dismissed an appeal by the Applicant against conviction and sentence: Rajendran v R [2010] NSWCCA 322; 206 A Crim R 316. 8In brief terms, the Applicant met the victim on an internet site on 2 March 2009. He masqueraded as an agent, looking for models to employ. After communicating with the Applicant for some days, the victim agreed to meet the Applicant. They met at a bar in Sydney, where the victim consumed champagne. They then walked to a nearby office, where the Applicant sexually assaulted the victim. He had penile/vaginal sexual intercourse, without her consent, knowing that she was not consenting. 9The Applicant submits that Muldrock error is revealed sufficiently in the remarks on sentence of the sentencing Judge. After recounting the circumstances of the offence, her Honour said (ROS9): "In my view the objective seriousness of the offence falls within the middle range but in the band - if you see it as a band, which one must, being the middle range and the lower band of the middle range - towards the top of the lower band of the middle range." 10The sentencing Judge turned to the Applicant's subjective circumstances, before returning to the relevance of the standard non-parole period (ROS11-12). Her Honour then said (ROS12): "In my view, given the features I have stated, that is to say his prior good character, he is a person with no prior record, he has worked and because of his age has a reasonable stock of good character, it is those factors which in my view allow some modification in his favour of the standard non-parole period." 11Before passing sentence, her Honour said (ROS12-13): "Another reason for there being some modification of the standard non-parole period in this case is that I am of the view there are special circumstances, those special circumstances being that this is the first time he has served a custodial sentence, his requirement for supervision upon his release to reintegrate him back into the community after a substantial period in custody and to ensure that he does not re-offend. In my view he has fair to reasonable prospects of rehabilitation and his intelligence is a feature that will assist him in this regard. I give some weight also to the way he is serving the sentence, that is on protection. It is the combination of those matters that in my view call for a greater period of supervision in the community. Having said that, the non-parole period I intend to impose is in my view the least possible in all the circumstances, given the objective seriousness of the offence and taking into account the subjective factors, but also giving weight which the Court must to the requirement for general deterrence." 12On appeal, Simpson J (Blanch and Garling JJ agreeing) said in Rajendran v R at [70]: "Her Honour determined, for the purposes of s 54B, that there were reasons for the departure, downwards, from the standard non-parole period. These were the appellant's prior good character and his employment history. She found, within s 44(2) of the Sentencing Procedure Act, that special circumstances existed justifying departure from the ratio there prescribed between the non-parole period and the head sentence." 13The Court dismissed the sentence appeal, noting that the sentence imposed was well within the range available in the exercise of a sound sentencing discretion: Rajendran at R at [74]. 14The present application focuses, in particular, upon the remarks on sentence of the sentencing Judge. 15The Applicant submits that a doubt or question is raised concerning a mitigating circumstance with the sentencing Judge adopting a two-stage approach to sentencing contrary to Muldrock. 16The Attorney General submitted that, although her Honour's expression that the Applicant's subjective circumstances allowed some modification in his favour of the standard non-parole period suggested a two-stage process, a fair reading of the remarks on sentence as a whole indicated that there was no Muldrock error in this case. 17In my view, it is open to conclude that the sentencing Judge engaged in an impermissible two-stage process to sentence, that is, by determining that the standard non-parole period was applicable and then determining whether there was anything that warranted a departure from that standard, contrary to Muldrock at [27]-[28]. The Court of Criminal Appeal noted that the sentencing Judge "determined, for the purposes of s 54B, that there were reasons for the departure, downwards" (see [12] above). Although the sentencing Judge sought to synthesise the objective and subjective factors before arriving at an appropriate sentence, it is open to the Applicant to contend that a primary or determinative significance was afforded to the standard non-parole period. 18There is, in my view, a doubt or question as to a mitigating circumstance in the case warranting a referral of the matter to the Court of Criminal Appeal. It will be for that Court to determine the merits of the case. 19The application is granted. The matter is referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.