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12
Court of Criminal Appeal 24 April 2008

SABAPATHY v R

[2008] NSWCCA 82

Sexual offences
CRIMINAL LAW PLEA OF GUILTY SENTENCED TO IMPRISONMENT APPEAL AGAINST CONVICTION OR OTHER MATTERS ON FACTS, NO MISCARRIAGE OF JUSTICE

Citation: Sabapathy v R [2008] NSWCCA 82
Court: NSW Court of Criminal Appeal
Date: 24 April 2008
Judge(s): Giles JA; Adams J; Latham J

Background

The appellant pleaded guilty in the District Court to one count of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The offence occurred in May 2005, when the appellant, as the complainant's landlord, invited her into his home shortly after she moved in. According to the agreed facts, the complainant became drowsy during the evening and the appellant carried her to his bedroom and engaged in sexual intercourse with her without her consent.

The original indictment had contained five counts, including a charge of administering a stupefying drug and a related charge of installing a covert camera device. Following negotiations between the parties' lawyers, the Crown presented a fresh single-count indictment, to which the appellant pleaded guilty. The camera charge was remitted to the Local Court.

The appellant was sentenced by Sweeney DCJ to a non-parole period of 18 months with a further term of 18 months. He then appealed to the Court of Criminal Appeal against both conviction and sentence.

  • Whether the guilty plea was attributable to a genuine consciousness of guilt, or whether a miscarriage of justice had occurred
  • Whether the integrity of the plea was compromised by any of several factors, including: reliance on potentially prejudicial Crown evidence, a misunderstanding of the legal concept of recklessness, a misunderstanding about what had been agreed with the Crown, a mistaken belief that periodic detention was available as a sentencing option, conduct by the appellant that effectively traversed his plea, and alleged inadequacy of legal advice about the precondition for entering a guilty plea
  • Whether the sentencing judge erred in failing to find exceptional circumstances justifying a departure from the standard non-parole period
  • Whether the sentencing judge placed undue weight on the nature of the sexual intercourse involved
  • Whether the sentencing judge failed to properly consider a suspended sentence
  • Whether the full-time custodial sentence was manifestly excessive

Decision

The Court dismissed the conviction appeal. Giles JA (with Adams J and Latham J agreeing) found that the plea had been freely entered and was attributable to a genuine consciousness of guilt. None of the factors raised by the appellant were found to have undermined the integrity of the plea so as to constitute a miscarriage of justice.

On the question of the mistaken advice about periodic detention, the Court noted that the appellant had been informed of the error before the sentencing hearing and told it was open to him to change his plea. He declined to do so. That course of events reinforced, rather than weakened, the conclusion that the plea had been freely made.

On sentence, the Court granted leave to appeal but dismissed the appeal on all grounds. Giles JA found no error in the sentencing judge's assessment of the objective seriousness of the offence, and no basis for concluding the sentence fell outside the range properly available in the exercise of the sentencing discretion. The submission that a two-year sentence should have been imposed and then suspended was rejected, as neither the predicate finding of error nor the consequential leap to suspension was established.

Giles JA went further, observing that no less severe sentence was warranted in law and should have been passed. Under s 6(3) of the Criminal Appeal Act, this finding would itself have been fatal to the sentence appeal regardless of the other grounds.

Orders Made

  • Conviction appeal dismissed
  • Leave to appeal against sentence granted but appeal dismissed

Key Takeaways

  • A conviction appeal following a guilty plea ordinarily examines the integrity of that plea, not the appellant's factual guilt or innocence; the central question is whether a miscarriage of justice has occurred.
  • Where an appellant was informed of an error in legal advice (here, about periodic detention) before sentencing, was told he could withdraw his plea, and chose not to do so, that decision reinforces the conclusion that the plea was freely entered.
  • Misunderstandings about available sentencing options do not automatically undermine the integrity of a guilty plea, particularly where the defendant has had the opportunity to reconsider and has declined to change course.
  • In dismissing the sentence appeal, the Court confirmed that a finding under s 6(3) of the Criminal Appeal Act that no less severe sentence was warranted in law is itself sufficient to defeat an appeal against sentence.
  • No error was established in the sentencing judge's approach to objective seriousness or to the question of whether a suspended sentence was appropriate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 38, 61I
- Summary Offences Act 1988 (NSW), s 21H
- Criminal Procedure Act 1986 (NSW), s 166
- Criminal Appeal Act (NSW), s 6(3)

Cases:
- Mulato v Regina [2006] NSWCCA 2182
- R v Hura (2001) 121 A Crim 474
- R v Rae (No 2) [2005] NSWCCA 380
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Sauer v R [2006] NSWCCA 81