Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Nadarasa v R; Satkunarasa v R; Sivapathasunram v R [2018] NSWCCA 29 Hearing dates: On the papers Decision date: 07 March 2018 Before: Meagher JA; R A Hulme J; Beech-Jones J Decision: In respect of Kohilan Satkunarasa and Sathees Sivapathasunram: 1. Extend time for filing Notices of Application for Leave to Appeal against Conviction until 25 October 2017. In respect of each of the applicants: 2. Leave to appeal against conviction granted. 3. Appeal allowed. 4. The verdicts of guilty on Count 3 and the sentences imposed on 24 February 2017 are set aside. In lieu thereof, substitute verdicts of guilty of an offence under s 33B(2) of the Crimes Act 1900 (NSW) of using an offensive weapon with intent to commit an indictable offence, namely assault, whilst in company. 5. Each of the three appellants are convicted but no penalty is imposed pursuant to s 10A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Catchwords: CRIMINAL LAW – conviction appeal – wounding with intent to cause grievous bodily harm – where appellants also charged in the alternative with using an offensive weapon with intent to commit an indictable offence – where two co-accused successfully appealed against convictions for wounding offence and verdicts substituted for alternative offence – same evidence at trial relating to three appellants – Crown concedes outcome of appeal should be same as for two co-accused – appeal allowed – conviction quashed and verdict for alternative offence entered – sentence imposed at first instance taken to have been fully served - conviction recorded without any other penalty Legislation Cited: Crimes Act 1900 (NSW) ss 33(1), 33B(2) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 10A(1) Criminal Appeal Act 1912 (NSW) s 7(2) Cases Cited: Sivaraja v R; Sivathas v R [2017] NSWCCA 236 Category: Principal judgment Parties: Krishnakumar Nadarasa (Applicant) Kohilan Satkunarasa (Applicant) Sathees Sivapathasunram (Applicant) Regina Representation: Counsel: Mr G Jauncey (Applicants) Ms S Dowling SC (Crown) Solicitors: Newtown's Law (Nadarasa) Aquila Lawyers (Satkunarasa & Sivapathasunram) Solicitor for Public Prosecutions File Number(s): 2013/158626; 2013/158555; 2013/158670 Decision under appeal Court or tribunal: District Court Date of Decision: 24 February 2017 Before: Herbert DCJ File Number(s): 2013/158626; 2013/158555; 2013/158670 Judgment 1. THE COURT: Five men were sentenced to terms of imprisonment of 3 years with a non-parole period of 2 years on 24 February 2017 by Herbert DCJ in the District Court at Parramatta for an offence of wounding with intent to cause grievous bodily harm ("the wounding offence"). 2. The five men had been found guilty of this offence (which was Count 3 in the indictment) after a trial by jury. They were each found not guilty of various other offences. No verdict was required to be returned in respect of an offence in Count 4 of the indictment of using an offensive weapon with intent to commit an indictable offence, namely assault, whilst in the company of each other ("the offensive weapon offence") because it was charged in the alternative to the wounding offence. 3. The wounding offence is contrary to s 33(1)(a) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 25 years. The offensive weapon offence is contrary to s 33B(2) of the same Act and the maximum penalty is imprisonment for 15 years 4. These offences, and others for which the men were tried but acquitted, arose out of events that occurred on the night of 20 April 2013 at Pendle Hill. It was alleged by the Crown that there were various incidents involving some or all of the men assaulting Mr Kathiravelu Thirukatheeswaran and there was also a charge concerning an alleged assault upon a man who came to the scene of the final incident, Mr Anthony Thushanthan. Successful appeals by two offenders 1. Two of the five men, Kajan Sivaraja and Suresh Sivathas, successfully appealed against their convictions for the wounding offence: Sivaraja v R; Sivathas v R [2017] NSWCCA 236. The Court, constituted by Meagher JA, R A Hulme and Beech-Jones JJ, (at [190]), upheld a ground of appeal asserting that the verdict of guilty for the wounding offence was unreasonable on the basis that the jury ought to have had a reasonable doubt about the intention element of the offence. Pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW) a verdict of guilty of the alternative offensive weapon offence was substituted and the matter was remitted to the District Court for re-sentence. Subsequent appeals by remaining offenders 1. The other three of the five men, Kohilan Satkunarasa, Krishnakumar Nadarasa and Sathees Sivapathasunram, had filed Notices of Intention to Appeal but no Notices of Appeal or Notices of Application for Leave to Appeal had been filed at the time the Court dealt with the proceedings concerning Messrs Sivaraja and Sivathas. 2. Subsequently, on 25 October 2017, proceedings in the Court by Messrs Sivapathasunram and Satkunarasa were instituted by the filing of the necessary documents which include an application for an extension of time. It is understood, and accepted, that delay was a result of the legal representatives for these men advising their clients that it would be appropriate to await the outcome of the proceedings brought by Messrs Sivaraja and Sivathas. 3. Whether this is an acceptable explanation for the delay is doubtful. It is preferable that the Court deal with all matters arising from the same or related proceedings in the court below at the same time to avoid difficulties with the Court being constituted differently if appeal proceedings are instituted at different times. However, as the parties have agreed that the original bench of the Court should consider the present matter, and on the papers, no difficulties arise, so the extension of time should be granted. 4. No extension of time is required in relation to the Application for Leave to Appeal against Conviction of Mr Nadarasa because the proceedings were instituted on 22 November 2017 while a Notice of Intention to Appeal was still in effect. 5. Messrs Nadarasa, Satkunarasa and Sivapathasunram had spent time in immigration detention following the cancellation of their visas as a result of this matter. The primary judge took this into account when imposing sentence on 24 February 2017 by backdating their sentences such that their sentences (3 years with a non-parole period of 2 years in each case) had expired before the date of imposition (8 March 2016, 4 September 2016 and 19 August 2016 respectively). 6. It is unnecessary to refer to the evidence given at trial. A comprehensive review may be found in Sivaraja v R; Sivathas v R at [10]-[112]. The relevant findings made by the Court in upholding the unreasonable verdict ground of appeal are set out at [176]ff. Submissions 1. In written submissions filed on behalf of Messrs Sivapathasunram, Satkunarasa and Nadarasa, Mr Jauncey of counsel contended (at [11]-[12]): "As the evidence against each of the accused at trial was identical and that none of the accused gave evidence, the only ground to be pursued by the three Appellants in this Appeal is … that the verdict returned by the jury in count three is unreasonable having regard to the nature and quality of the evidence. Each of the Appellants seeks the same order as given by the Court in the earlier decision: that is, that the conviction in respect of count three be quashed and that a conviction under count four substituted and the matter is remitted to the District Court for re-sentence." 1. The Crown filed written submissions by senior counsel in response on 5 February 2018. They include: "The respondent accepts that considerations of fairness and comity require that the result of this appeal is the same as the first appeal. The appeal is conceded." Determination 1. Although the matter was listed for hearing on 23 February 2018 before a Court that was likely to be differently constituted, on 13 February 2018 the representatives of Messrs Satkunarasa and Sivathas informed the Registrar that they were content for the Court as originally constituted to consider and determine the matter on the papers. The representative of Mr Nadarasa advised likewise on 26 February 2018. 2. We accept the submission that there is no basis to differentiate the cases against Messrs Sivaraja and Sivathas on the one hand and against the present three applicants on the other. We are of the view that the concession by the Crown is appropriate and that the sole ground of appeal should be upheld. 3. We were informed that when the cases of Messrs Sivaraja and Sivathas were remitted to the District Court, her Honour Judge Herbert resentenced each of them on 17 November 2017 to good behaviour bonds pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 12 months. The cases of those two men differed from the present applicants in that the sentences of imprisonment they had originally received were not backdated but largely remained to be served before they were granted bail pending appeal. 4. As previously mentioned, the sentences of 3 years imprisonment for each of the present applicants were backdated with the effect that they had expired before the date they had been imposed. In these circumstances we cannot foresee anything other than a notional penalty being imposed upon them if we were to remit the matter to the District Court. Accordingly it is appropriate to record a conviction for the offensive weapon offence but dispose of the proceedings without imposing any other penalty pursuant to s 10A(1) of the Crimes (Sentencing Procedure) Act. The parties, including the Crown, have indicated to the Registrar that they would not oppose the Court taking this approach. 5. The following orders are made: In respect of Kohilan Satkunarasa and Sathees Sivapathasunram: (1) Extend time for filing Notices of Application for Leave to Appeal against Conviction until 25 October 2017. In respect of each of the applicants: (2) Leave to appeal against conviction granted. (3) Appeal allowed. (4) The verdicts of guilty on Count 3 and the sentences imposed on 24 February 2017 are set aside. In lieu thereof, substitute verdicts of guilty of an offence under s 33B(2) of the Crimes Act 1900 (NSW) of using an offensive weapon with intent to commit an indictable offence, namely assault, whilst in company. (5) Each of the three appellants are convicted but no penalty is imposed pursuant to s 10A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). ********** 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: 07 March 2018