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District Court 17 September 2020

R v Shanmugam (No 2)

[2020] NSWDC 555

Sexual offences
CRIME: SEXUAL TOUCHING WITHOUT CONSENT RELEVANT FACTORS SENTENCE AFTER TRIAL VICTIM IMPACT INTOXICATION CERTAINTY OF DEPORTATION

Citation: R v Shanmugam (No 2) [2020] NSWDC 555
Court: District Court of New South Wales
Date: 17 September 2020
Judge: Haesler SC DCJ

Background

Following a judge-alone trial, the offender was convicted of five sexual offences committed against a female friend during the early hours of a morning in January 2019. The offences occurred in the complainant's home after a work Christmas party, in circumstances where the complainant had trusted the offender sufficiently to share a bed with him and a mutual friend. The complainant had explicitly told others she was not concerned about the arrangement, as she trusted him as a close friend.

While the complainant pretended to be asleep, the offender committed a sequence of escalating acts: sexual touching, an attempted anal penetration that caused the complainant pain, further sexual touching, a partial penile-vaginal penetration, and finally a complete penile-vaginal penetration using a condom. The complainant texted a friend "Help" during the offending. Her subsequent SMS exchange with the offender was treated as damning evidence at trial.

The offender denied the offending at trial and continued to do so at sentence. He was 24 years old at the time of sentencing, an Indian national completing tertiary studies in Australia, with no prior criminal history.

  • How the objective seriousness of each offence should be assessed, including by reference to standard non-parole periods under the Crimes (Sentencing Procedure) Act 1999
  • The weight to be given to the offender's intoxication at the time of the offending, noting the statutory bar on using intoxication to mitigate sentence
  • Whether the offender's prior good character, absence of criminal history, and low risk of reoffending warranted leniency
  • The relevance of the offender's immigration status and certain deportation to sentence
  • Whether the hardships of imprisonment as a non-citizen during COVID-19 conditions constituted exceptional circumstances
  • How totality, concurrency, accumulation, and special circumstances applied across five separate counts

Decision

Objective seriousness. His Honour found that all five offences were serious, occurring in the complainant's home where she was entitled to feel safe, involving a persistent escalation of conduct and a breach of her trust. That said, the judge assessed the two counts of sexual intercourse without consent as falling toward the lower end of the range for offences of their type. Aggravating features such as physical injury beyond the pain caused by the attempt offence, ejaculation, or threats were absent. The briefness of the penetrative acts was noted, though this did not diminish the gravity of the offending overall.

Intoxication. The offender had consumed alcohol and marijuana that night in quantities beyond his norm. His Honour acknowledged that this helped explain the impulsivity of the conduct and why a person of otherwise good character acted as he did. However, the court confirmed that intoxication cannot operate as a mitigating factor under s 21A(5) and (5AA) of the Crimes (Sentencing Procedure) Act 1999. It remained relevant only to the court's understanding of the offender's state of mind and his prospects of reoffending.

Subjective matters and deportation. The offender's prior good character was supported by work references and evidence from friends, including two female colleagues who described him as respectful and kind. His Honour accepted that this was a one-off event, that the offender posed a low risk of reoffending, and that his youth and relative immaturity were relevant. The court noted the offender's certain deportation to India following sentence, acknowledging this as a relevant factor consistent with the established line of authority, while treating it as one consideration among many rather than a basis for substantial reduction. The absence of family support in Australia, and hardships arising from COVID-19 restrictions on prison visits, were considered but found not to be exceptional circumstances distinguishing his situation from that of most imprisoned non-citizens.

Totality and special circumstances. The court found special circumstances existed, given that the five offences arose from one short event and that the offender would require supervision and support on release, particularly given his impending deportation. Applying principles of concurrency, accumulation, and totality, His Honour arrived at an aggregate sentence rather than simply adding individual terms.

Orders Made

  • Count 1 (sexual touching without consent): 3 months imprisonment
  • Count 2 (attempted sexual intercourse without consent): 2 years imprisonment
  • Count 3 (sexual touching without consent): 1 year imprisonment
  • Count 4 (sexual intercourse without consent): 4 years imprisonment, non-parole period 2 years 5 months
  • Count 5 (sexual intercourse without consent): 4 years 3 months imprisonment, non-parole period 2 years 6 months
  • Aggregate sentence: 5 years imprisonment with a non-parole period of 3 years
  • Sentence commenced 17 September 2020; eligible for parole consideration 16 September 2023; total sentence expires 16 September 2025
  • Formal conviction recorded on each count

Key Takeaways

  • Intoxication by alcohol and marijuana cannot reduce the severity of a sentence under s 21A(5) and (5AA) of the Crimes (Sentencing Procedure) Act 1999, even where it helps explain otherwise out-of-character conduct. The District Court confirmed it remains relevant only to understanding the offender's state of mind and reoffending risk.
  • Prior good character, a first custodial sentence, youth, and low risk of reoffending can each warrant leniency in sentencing, but mitigating factors have limits where objectively serious offences have been committed.
  • Certain deportation following imprisonment is a recognised sentencing consideration, but does not automatically lead to a significant reduction in sentence, particularly where hardship is not exceptional compared to other imprisoned non-citizens.
  • Where multiple offences arise from a single, short course of conduct, principles of concurrency, accumulation, totality, and special circumstances operate together to produce an aggregate sentence that reflects overall criminality without being merely additive.
  • Sexual offending committed in a complainant's home, involving a breach of trust and an escalating sequence of acts, attracts sentences that must vindicate the complainant's dignity and express community condemnation, even where individual acts are assessed as falling toward the lower end of the sentencing range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61KC(a), 344(1)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 276
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(5), 21A(5AA), 54B(6)
- Migration Act 1958 (Cth)

Cases
- Barbaro v The Queen (2014) 253 CLR 58
- Bullock v R [2016] NSWCA 131
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Guden v R [2010] VSCA 196
- He v R [2016] NSWCCA 220
- Hili v The Queen (2010) 242 CLR 520
- Kwon v R [2004] NSWCCA 256
- Mill v The Queen (1988) 166 CLR 59
- Muldrock v The Queen (2011) 244 CLR 120
- Nguyen v The Queen [2016] HCA 17
- R v Chi Sun Tsui (1985) 1 NSWLR 308
- R v Edwards (1996) 90 A Crim R 510
- R v Hull [2016] NSWSC 634
- R v J.R.B [2006] NSWCCA 371
- R v Marcial [2011] NSWDC 119
- R v Mirazee [2004] NSWCCA 315
- R v Pham [2005] NSWCCA 94
- R v Shanmugam [2020] NSWDC 482 (trial judgment)
- R v Simpson [2001] NSWCCA 534; (2001