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Court of Criminal Appeal 17 December 2010

Rajendran v R

[2010] NSWCCA 322

Also reported as (2010) 206 A Crim R 316
Sexual offences
CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON SEXUAL OFFENCES SEXUAL INTERCOURSE WITHOUT CONSENT CIRCUMSTANCE OF AGGRAVATION

Citation: Rajendran v R [2010] NSWCCA 322
Court: NSW Court of Criminal Appeal
Date: 17 December 2010
Judges: Simpson J, Blanch J, Garling J

Background

The appellant was convicted in the District Court, following a jury trial, of sexual intercourse without consent. The Crown's case was that the appellant had contacted the complainant through an internet site, falsely presented himself as a modelling agent, and induced her to meet him under false pretences. He then took her to his office, where he sexually assaulted her.

The original indictment charged the aggravated form of the offence under s 61J of the Crimes Act 1900, on the basis that the appellant had inflicted actual bodily harm on the complainant at the time of the offence. During the trial, the Crown amended the indictment to remove that circumstance of aggravation, leaving the non-aggravated offence under s 61I in issue.

The appellant was convicted and sentenced to imprisonment for 7 years and 6 months, with a non-parole period of 5 years. He appealed against conviction and sought leave to appeal against sentence.

  • Whether the amendment of the indictment during trial (to delete the circumstance of aggravation) required the appellant to be re-arraigned on the amended charge
  • Whether the amendment created any deficit in the indictment or otherwise produced an error affecting the conviction
  • Whether the sentence of 7 years and 6 months imprisonment was manifestly excessive

Decision

Conviction appeal. The sole ground of the conviction appeal concerned the procedural effect of the mid-trial amendment to the indictment. The Court found no error. Deleting the circumstance of aggravation from a s 61J charge did not introduce a new offence; the non-aggravated offence under s 61I was a statutory alternative already available on the original indictment. There was no deficit in the indictment requiring re-arraignment, and the appellant had not been prejudiced.

Sentence appeal. The Court rejected the submission that the offence was merely opportunistic and short in duration. Simpson J found that the conduct was premeditated: the appellant had spent the preceding week communicating with the complainant under a false identity, exploiting her aspirations to a modelling career. On the day in question, he supplied her with alcohol against her stated preference and, once she was affected by it, took her to a secured office from which she could not easily leave.

The sentencing judge had taken into account the appellant's prior good character, employment history, letter of apology (to which some small weight for remorse was accorded), and the Victim Impact Statement. She had found special circumstances justifying a departure from the standard non-parole period ratio. The Court of Criminal Appeal concluded that the sentence was well within the range open on a sound sentencing discretion and found no error warranting intervention.

Orders Made

  • Appeal against conviction dismissed
  • Leave granted to appeal against sentence
  • Appeal against sentence dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that amending an indictment during trial to delete a circumstance of aggravation does not, without more, require the accused to be re-arraigned, where the resulting charge reflects a statutory alternative already available on the original indictment.
  • No error is established merely because the indictment is amended mid-trial, provided the amendment does not charge a new offence and the accused suffers no relevant prejudice.
  • A finding that an offence was "opportunistic" carries little weight where the evidence discloses sustained pre-offence conduct designed to manipulate the complainant, as the sentencing court is not bound to characterise such conduct charitably.
  • Under the Crimes (Sentencing Procedure) Act 1999, a sentencing court may depart downward from the standard non-parole period on the basis of prior good character and employment history, and may find special circumstances justifying a variation in the head sentence to non-parole period ratio.
  • In dismissing the sentence appeal, the Court of Criminal Appeal reaffirmed that appellate intervention requires identification of a specific error; a sentence within the available discretionary range will not be disturbed simply because a different result might have been open.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61J
- Criminal Procedure Act 1986 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 54B

Cases
- Doga v R [2009] NSWCCA 303; 198 A Crim R 349
- Kamm v R [2007] NSWCCA 201
- Lodhi v R [2006] NSWCCA 121; 199 FLR 303
- Mackay v The Queen [1977] HCA 22; 136 CLR 465
- Maher v The Queen [1987] HCA 31; 163 CLR 221
- Papadopoulos v R; Topcu v R [2007] NSWCCA 274
- Park v R [2010] NSWCCA 151