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Court of Criminal Appeal 24 June 2014

Rajendran v R

[2014] NSWCCA 113

Sexual offences
CRIMINAL LAW APPEAL PRACTICE AND PROCEDURE APPEAL MULDROCK ERROR WHERE SENTENCING JUDGE ENGAGED IN TWO

Citation: Rajendran v R [2014] NSWCCA 113
Court: New South Wales Court of Criminal Appeal
Date: 24 June 2014
Judges: Gleeson JA, Bellew J, Hamill J

Background

The appellant was convicted by a jury in January 2010 of sexual intercourse without consent, contrary to s 61I(1) of the Crimes Act 1900, carrying a maximum penalty of 14 years imprisonment and a standard non-parole period of seven years. The offending involved an elaborate deception: the appellant posed online as a modelling agent, lured the victim to his workplace under the pretence of a career interview, and then forced sexual intercourse on her while she was visibly distressed and crying. A prior appeal against both conviction and sentence had been dismissed.

Following that dismissal, the appellant applied under s 78 of the Crimes (Appeal and Review) Act 2001 for a referral back to the Court of Criminal Appeal, arguing that the sentencing judge had made a "Muldrock error" by adopting a two-stage sentencing process that treated the standard non-parole period as a sentencing starting point rather than as a statutory guidepost. Johnson J granted that application in March 2014 and referred the matter to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.

Before the Court of Criminal Appeal, the appellant also sought to raise three additional grounds of error beyond the Muldrock ground that formed the basis of the referral. The Crown contested whether the appellant needed an extension of time and leave to rely on those additional grounds.

  • Whether the sentencing judge had engaged in a two-stage Muldrock sentencing error by treating the standard non-parole period as a sentencing starting point
  • Whether the appellant required an extension of time and leave to raise additional grounds of appeal beyond those that formed the basis of the s 78 referral
  • Whether the sentencing judge was obliged to consider alternative bases for the jury's finding that the appellant knew the victim was not consenting, given how the Crown put its case on sentence
  • Whether the sentencing judge's failure to specifically refer to the low risk of re-offending identified in the pre-sentence report constituted an error
  • Whether, having found error, some other sentence was warranted in law

Decision

The Court found that the Muldrock error in Ground 1 was established: the sentencing judge had engaged in an impermissible two-stage sentencing process, treating the standard non-parole period as a starting point rather than as one of several relevant factors to weigh alongside all the circumstances of the offence and offender. That finding enlivened s 6(3) of the Criminal Appeal Act 1912, which required the Court to determine whether some other sentence was warranted in law.

Because the error in Ground 1 was sufficient to engage s 6(3), the Court found it unnecessary to resolve whether the appellant needed leave or an extension of time to rely on Grounds 2, 3, and 4. The matters raised in those additional grounds were instead considered within the s 6(3) exercise. On the question of the sentencing judge's treatment of the appellant's knowledge of non-consent, the Court noted that no contrary submission had been made by defence counsel on sentence, and considered whether the judge was nonetheless obliged to canvas the alternative statutory bases. On the risk of re-offending, the Court accepted that, given the sentencing remarks were delivered ex tempore, the absence of specific reference to the pre-sentence report's findings did not necessarily demonstrate error.

The majority (Gleeson JA and Bellew J) concluded that, notwithstanding the Muldrock error, no other sentence was warranted in law. The nature of the offending was serious: the appellant had deliberately deceived the victim, forced intercourse on her while she wept and showed every visible sign of distress, and then attempted to buy her silence with promises of a modelling career. The original sentence of seven years and six months with a non-parole period of five years was allowed to stand.

Hamill J dissented on the question of re-sentencing. His Honour concluded that the objective gravity of the offence, while serious, warranted a somewhat lesser sentence when properly assessed against the mitigating features. Hamill J would have imposed a total sentence of six years with a non-parole period of four years (finding special circumstances given the appellant had no prior custodial history), noting that on that approach the non-parole period had already expired and the matter of release would fall to the NSW Parole Authority.

Orders Made

The majority dismissed the appeal and declined to substitute a different sentence. Hamill J's proposed orders (dissenting) would have been:

  • Appeal allowed
  • Sentence imposed by Judge Payne SC quashed
  • Non-parole period of four years commencing 11 October 2009 and expiring 10 October 2013, with a balance of term of two years expiring 10 October 2015
  • Recommendation that the appellant's release to parole be given urgent consideration

Key Takeaways

  • A Muldrock error (treating the standard non-parole period as a sentencing starting point rather than a statutory guidepost) remains a recognised ground for referral under the Crimes (Appeal and Review) Act 2001, but the finding of such error does not automatically produce a different sentence on appeal.
  • Where a Muldrock error is established and s 6(3) of the Criminal Appeal Act 1912 is enlivened, additional grounds raised outside the original s 78 referral can be considered within the s 6(3) exercise, making it unnecessary to resolve whether leave or an extension of time was separately required.
  • Sentencing reasons delivered ex tempore are assessed with appropriate allowance for the circumstances; the absence of explicit reference to a specific item in a pre-sentence report does not automatically establish error where the judge was clearly aware of the report.
  • In dismissing the appeal by majority, the Court of Criminal Appeal confirmed that the gravity of the offending conduct, including deliberate deception of a victim and forced intercourse in the face of visible and obvious distress, can outweigh mitigating factors and support the original sentence even after an identified sentencing error.
  • A split outcome between majority and dissent on the re-sentencing question illustrates that the s 6(3) inquiry remains a matter of evaluative judgment about all the circumstances, and the identification of a sentencing error does not of itself determine whether a lesser sentence was warranted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79, 86
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44
- Evidence Act 1995 (NSW)

Key Cases
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Application by Paul Rajendran pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 270
- Rajendran v R [2010] NSWCCA 322
- Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259
- Mallard v R [2005] HCA 68; (2005) 224 CLR 125
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2
- JJT v R [2006] NSWCCA 83
- Kearns v R [2011] NSWCCA 103; (2011) 213 A Crim R 150
- McCartney v R [2009] NSWCCA 244
- Poniris v R [2014] NSWCCA 100
- Essex v R [2013] NSWCCA 11
- Jolly v R [2013] NSWCCA 76