AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 31 May 2017

Rajasekar v R

[2017] NSWCCA 113

Sexual offences
CRIME SENTENCE APPEAL POSSESS CHILD ABUSE MATERIAL FURTHER OFFENCES ON A SCHEDULE COMPLAINT AS TO DEGREE OF ACCUMULATION COMPLAINT OF MANIFEST EXCESS

Citation: Rajasekar v R [2017] NSWCCA 113
Court: NSW Court of Criminal Appeal
Date: 31 May 2017
Judges: Leeming JA, Adamson J, Wilson J (unanimous)

Background

The appellant pleaded guilty in the District Court to four offences broadly categorised as child abuse offences: two counts of using a carriage service to groom a person under 16 years, one count of using a carriage service to engage in sexual activity with a person under 16 years, and one count of possessing child abuse material. Two further grooming offences were taken into account on sentence under the Commonwealth schedule procedure. The offending occurred between February and November 2014 and involved five identified child victims.

The appellant had created false social media identities to engage children online for sexual purposes, soliciting nude photographs and engaging children in sexual chat. He also used Facebook and Skype to have one child perform sexual acts via webcam. Some 40 videos and 167 images of child abuse material were found on a laptop at his home.

The District Court sentenced the appellant to a total effective term of 5 years and 9 months imprisonment, with sentences partially accumulated and partially concurrent. The appellant sought leave to appeal, contending that the sentencing judge had erred in applying the totality principle, had accumulated the sentences to an excessive degree, and that the sentences were manifestly excessive.

  • Whether the sentencing judge misapplied the totality principle in structuring the accumulated sentences
  • Whether the degree of accumulation was excessive
  • Whether the overall sentences were manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal on the first two grounds but dismissed the appeal. Wilson J (with whom Leeming JA and Adamson J agreed) found no error in the sentencing judge's approach to totality or accumulation.

The sentencing judge had treated the offending as a continuous course of conduct occurring over several months, and had applied significant concurrency while also building in a degree of accumulation to recognise that each offence was distinct. The Court of Criminal Appeal found this approach was consistent with proper sentencing principle, noting that the structure of the sentences appropriately reflected both the interconnected nature of the offending and its individual elements.

On manifest excess, the Court noted that the offences attracted maximum penalties of 10, 12, and 15 years respectively, and that the two scheduled offences each carried a maximum of 12 years. The sentencing judge had assessed the gravity of the federal offences as "grave and seriously criminal" and the overall criminality as high. The Court held that even accounting for the appellant's prior good character and early guilty pleas, a lesser total sentence would have failed to reflect the serious criminality involved.

The Court concluded that the sentences were neither unreasonable nor unjust and that no error by the sentencing judge had been established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the sentencing judge's application of the totality principle where the judge expressly treated the offending as a continuous course of conduct while still accumulating sentences to recognise the distinctness of each offence.
  • A sentence at the upper end of the available range is not manifestly excessive merely by virtue of its position in that range; the question is whether it is unreasonable or unjust in all the circumstances.
  • Where multiple serious offences involve multiple victims and a prolonged course of predatory conduct, the principles of general deterrence and denunciation may weigh heavily in the sentencing exercise, even where the offender has good character and entered early guilty pleas.
  • The Court of Criminal Appeal confirmed the well-established principle, citing Markarian and Lowndes, that sentencing judges are to be afforded as much flexibility as is consonant with proper sentencing principles and consistency of approach.
  • In dismissing the appeal, the Court found that the combination of five identified child victims, two further scheduled offences, high assessed criminality, and a sustained period of offending supported the accumulated sentence structure imposed at first instance.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes Act 1914 (Cth), s 16BA
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code Act 1995 (Cth), ss 474.25A(1), 474.27(1)

Cases:
- Cahyadi v R (2007) 168 A Crim R 41
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 19
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Nguyen v R (2016) 256 CLR 656; [2016] HCA 14