SABAPATHY v R

PARTIES: Elvis Sabapathy - Appellant The Crown - Respondent

COUNSEL: R Bonnici - Appellant D Woodburne - Crown

SOLICITORS: Justin Lewis & Co - Appellant S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT DATE OF DECISION: 14 June 2007 (Sentence)

IN THE COURT OF CRIMINAL APPEAL CA 2007/3035 DC 06/11/0472

GILES JA ADAMS J LATHAM J

Thursday 24 April 2008 Elvis SABAPATHY v R Judgment 1 GILES JA: The appellant pleaded guilty to a charge of sexual intercourse without consent (Crimes Act 1900, s 61I). He was sentenced to imprisonment for a non-parole period of 18 months and a further term of 18 months. He appealed against conviction and applied for leave to appeal against sentence. 2 According to the agreed facts upon which the appellant was sentenced, the offence occurred on 29 May 2005. The complainant had moved into a granny flat attached to the appellant's home, he being her landlord, on the previous day. The appellant invited the complainant in to his home for a welcome drink. They consumed alcoholic drinks, had some food, and watched television and a DVD. The complainant became drowsy. The appellant asked if she was sleepy, but she did not respond. The appellant picked her up and carried her into his bedroom, where he "started touching her and removed her clothing and had sexual intercourse with her in a number of different positions, which [she] found painful". At one point the appellant ejaculated on the complainant's abdomen. The complainant did not consent to any of these acts. 3 An indictment had originally been presented in which the appellant was charged with a number of offences alleged to have been committed on this occasion: four counts of sexual intercourse without consent, and one count of administering a stupefying drug with intent to commit an indictable offence (Crimes Act, s 38) ("the drug charge"). He had also been charged with the offence of installing a device to facilitate filming for an indecent purpose (Summary Offences Act 1988, s 21H) ("the camera charge"), which had been transferred to the District Court as a related offence pursuant to s 166 of the Criminal Procedure Act 1986. It had been the Crown's case that the appellant had given the complainant a drug which depressed her central nervous system, one of the effects being drowsiness; that individual acts of sexual intercourse by way of digital penetration, fellatio, and two occasions of penile/vaginal penetration had occurred; and that the appellant had put a camera in the granny flat disguised as a smoke detector, aligned towards the complainant's bed and with cabling by which when connected up the images could be viewed or recorded remotely. 4 The guilty plea came after discussions between the appellant's lawyers and the Crown Prosecutor. As a result, the Crown did not proceed on the original indictment, a fresh indictment charging the one count of sexual intercourse without consent was presented to which the appellant pleaded guilty, and the camera charge was remitted to the Local Court. 5 The appellant appealed against conviction on the primary ground that there had been a miscarriage of justice because the guilty plea was not attributable to a genuine consciousness of guilt. By a separate ground, largely an elaboration of the first ground, he contended that the integrity of the plea was affected by one or more of -

(a) the threat of unfairly prejudicial evidence relied upon by the Crown;

(b) not having a full understanding of the legal concept of recklessness;

(c) a misunderstanding as to the agreement negotiated with the Crown;

(d) the belief that the appellant would receive a sentence other than full time custody, including the initial misconception that periodic detention was available as a sentencing option;

(e) matters by which the appellant "in essence, traversed his plea of guilty"; and

(f) failure of the appellant's lawyers to inform and advise him with sufficient emphasis that he must not plead guilty unless he had committed the offence with which he was charged. 6 In the event that the appeal against conviction failed, the appellant applied for leave to appeal against sentence on the grounds -

(a) that the sentencing judge erred in not finding exceptional circumstances;

(b) that the sentencing judge misdirected herself "by placing too much emphasis upon the form of sexual intercourse concerned";

(c) that the sentencing judge "did not fully and properly consider whether a suspended sentence should have been imposed"; and

(d) that the full-time custodial sentence imposed was manifestly excessive.

Procedural history 7 The appellant was arrested and charged on 30 May 2005. He was granted conditional bail on 1 June 2005. After various occasions in the Local Court, on 3 May 2006 he was committed for trial to the District Court. 8 On 9 June 2006 the appellant was arraigned in the District Court on an indictment containing the five counts earlier described, count 1 being the drug charge. The camera charge was identified as a related charge. The trial was ultimately listed to be held on 26 February 2007. 9 At an early time the appellant instructed a solicitor, Mr Mitchell Cavanagh. In mid-August 2006 counsel was retained on his behalf, Mr Tim Gartelmann. The appellant's instructions included a detailed statement in which he admitted having sexual intercourse with the complainant but said that the sexual intercourse was with her consent, and said that the installation of the camera in the granny flat was not for an improper purpose. In the account given by the appellant in the statement the complainant initiated the sexual intercourse and actively encouraged the appellant. The appellant's instructions were to maintain pleas of not guilty. 10 The Crown had made known that it intended to adduce evidence relating to the camera charge, apparently as so called "relationship evidence", tendency evidence or evidence from which sexual attraction to the complainant could be inferred providing a motive for acting in a sexual manner towards her. In September 2006 the appellant applied for orders that the matter be listed for pre-trial argument concerning severance of counts on the indictment and admissibility of evidence. It seems that the concerns were trial of the drug charge together with the other counts in the indictment and admissibility of evidence relating to the camera charge. The court refused to make the orders. It was not suggested that this foreclosed a severance application at the trial or objection to the evidence, as plainly it did not. 11 The trial did not commence on 26 February 2007. There were discussions between Messrs Gartelmann and Cavanagh and the Crown Prosecutor, and conferences with the appellant, which continued on 27 February 2007. As I have indicated, on 27 February 2007 an indictment was presented charging one count of sexual intercourse without consent, to which the appellant pleaded guilty, and the camera charge was remitted to the Local Court. The matter was adjourned for a sentencing hearing on 4 May 2007. 12 The lawyers' advice to the appellant had included that periodic detention was available as a sentencing option. In preparation for the sentencing hearing the appellant further conferred with Mr Gartelmann and Mr Cavanagh, and was advised that that was wrong and as a result of a recent change in the law periodic detention was no longer a sentencing option. He was told that it was open to him to change his plea. He did not do so. 13 After some adjournments the sentencing hearing took place on 14 June 2007, and the appellant was sentenced on that day.

The guilty plea 14 A conviction appeal following a plea of guilty is ordinarily not an investigation of the appellant's guilt or innocence, but an examinatiuon of the integrity of his plea of guilty. Its ultimate basis is that there has been a miscarriage of justice within s 6 of the Criminal Appeal Act 1912. The plea is an admission of the necessary legal ingredients of the offence, and there is no miscarriage of justice if the Court acts upon it provided that the plea is entered in the exercise of a free choice in what the accused believes to be his interests at the time. 15 The circumstances in which the integrity of the plea will be found wanting, so that a miscarriage of justice is established, have been variously expressed: for example, that the accused did not understand the nature of the charge, or did not intend to admit that he was guilty of it, or that the plea was induced by intimidation or fraud. I had occasion to address the relevant principles more fully in R v Rae (No 2) [2005] NSWCCA 380 at [20]-[25], with the agreement of Hislop and Rothman JJ, and adopt what was there said. The non-exhaustive tabulation of circumstances in R v Hura (2001) 121 A Crim R 474 to which I there referred has since been adopted in Sauer v R [2006] NSWCCA 81 at [8] (Grove J, James and Simpson JJ agreeing). It is not necessary further to explore the principles in the present case, since the outcome of the appeal is found in the facts. 16 Evidence was given by the appellant and by Messrs Gartelmann and Cavanagh, and there was documentary evidence including file notes from the file of the Director of Public Prosecutions. The appellant's recollection was shown to be at fault as to a number of matters, and his evidence can not be regarded as reliable. Where there is conflict, I prefer the evidence of Messrs Gartelmann and Cavanagh. As will appear, I do not accept the appellant's evidence in other respects. 17 On the morning of 26 February 2007 there was raised between the Crown Prosecutor and Mr Gartelmann the possibility of pleading guilty to one count of sexual intercourse without consent, on the basis of recklessness as to consent, in satisfaction of the indictment. Who raised it was rather unclear, probably the Crown Prosecutor. The Crown Prosecutor said that he would need to consult the complainant and seek approval from the Director of Public Prosecutions. The matter was stood in the list to allow discussions to continue. 18 The Crown Prosecutor told Mr Gartelmann that the Director would accept the plea, but that the Crown was not willing to no-bill the camera charge. 19 Messrs Gartelmann and Cavanagh conferred with the appellant. Mr Gartelmann told him of the discussion with the Crown Prosecutor, and said that he should consider the proposal. 20 At about lunchtime the matter was adjourned to the next day in order to allow further time. Messrs Gartelmann and Cavanagh conferred with the appellant at Mr Gartelmann's chambers during the afternoon. The conference canvassed the strengths and weaknesses of the prosecution case, including the prospect of evidence relating to the camera charge being excluded, and what was involved in recklessness including where there was intoxication. The lawyers took the appellant through a number of Court of Criminal Appeal cases and sentencing statistics. Mr Gartelmann advised the appellant that ordinarily a full time custodial sentence would be imposed for a sexual assault offence, and that whether his case was exceptional would be a matter for the sentencing judge. He advised the appellant that full time custody, periodic detention and a suspended sentence were all possible outcomes. 21 At the conclusion of the conference the appellant was asked to think about his decision overnight and discuss it with someone close to him. It was the understanding of Messrs Gartelmann and Cavanagh, and was the fact, that at that time the appellant had not told his wife or anyone else in his family about his case. 22 I do not accept the appellant's evidence that Mr Gartelmann told him that the proposal was "a good deal", although Mr Cavanagh said (and I accept) that he was told that the Crown's offer was in generous terms; there may be little difference in the appellant's perception. Nor do I accept the appellant's evidence that he was told that it was necessary for him to make a decision straight away, or that he was told that he would probably get a suspended sentence or at worst periodic detention. 23 In conference on the morning of 27 February 2007 the appellant informed Messrs Gartelmann and Cavanagh that he had thought about his decision and wished to plead guilty. The matter was mentioned from time to time while Mr Gartelmann discussed with the Crown Prosecutor a statement of facts. A number of drafts were prepared, shown to the appellant, and amended including at his request until the statement of facts was agreed. The appellant read it and signed it. I am satisfied that in this, and generally in relation to the charges, the appellant was very much involved and careful in understanding what was occurring; he was inquiring and not passive. 24 There were further discussions between Mr Gartelmann and the Crown Prosecutor, resulting in an agreement recorded in a file note signed by both - "Plea to be entered to one count of SIWC (rolled up counts 2-5) on basis that: 1. Administer stupefying drug no billed.

Basis of plea re issue of consent is that the accused was reckless (see signed agreed facts).

Install camera charge be remitted to the LC. Crown position on sentence is that the general principle for offence of SIWC requires imposition of FT custodial sentence unless unusual or exceptional circumstances can be made out." 25 The appellant was told of the terms of this agreement, and according to Mr Cavanagh - "It was explained to the Appellant that submissions made by a Crown Prosecutor on sentence at first instance would have a limiting affect on any argument on a Crown severity appeal. Further the appellant was advised that the Crown Prosecutor appearing in the matter would have to provide a report and that it was unlikely a report would be prepared in favour of an appeal given the undertaking." 26 Mr Gartelmann prepared in handwriting a confirmation of the appellant's instructions to plead guilty, which the appellant signed.. Only a draft was available in the appeal, not signed by the appellant. The final handwritten instructions signed by the appellant were said by Mr Gartelmann to "set out more fully aspects of the instructions, including that the kind of recklessness admitted was a failure to consider the complainant's consent at the time of the sexual intercourse in the context of his intoxication". 27 The draft instructions were in the terms - "I, Elvis Sabapathy, DOB: [date stated], instruct my lawyers as follows: 1. I understand that I am charged with the following counts: a. Administering stupefying drug with intent to have sexual intercourse. b. sexual intercourse without consent (x 3). 2. I have been advised that the maximum penalties for each of the above are: a. 25 yrs b. 14 yrs 3. I have been advised that a standard non-parole period applies to offences mentioned in para (b).

I have been advised that the standard non-parole period applies to offences in the mid range of seriousness after trial.

I understand that the Crown would accept a plea to 1 count of sexual intercourse without consent, on the factual basis that there was recklessness as to consent.

I have been advised that the sentence for such an offence, in the circumstances of my case, will be a sentence of imprisonment of some kind. I have been advised that it is possible that it will be ordered to be served on a full-time basis, by periodic detention or be suspended." 28 I do not accept the appellant's evidence that he was assured that what had been arrived at was a good deal, although his view of it no doubt was in the light of being told that the Crown's offer was in generous terms and something to that effect may well have been repeated. Nor do I accept his evidence that he was told that the camera charge was to be dropped. The appellant had asked Mr Gartelmann to ask the Crown to drop that charge, and Mr Gartelmann had done so, but the Crown Prosecutor had declined. Mr Gartelmann told the appellant that, on that charge being remitted to the Local Court, representations could be made that it not be pursued and if that was unsuccessful the matter could be defended. 29 At about 2.00 pm on 27 February 2007 the appellant was arraigned on the indictment containing the single count of sexual intercourse without consent, to which he pleaded guilty. The Crown Prosecutor told the judge that the drug charge had been no-billed subject to the appellant adhering to the plea, and that the single count was a "merger" of the remaining counts on the original indictment. 30 According to the appellant, he was "crying throughout the arraignment process". Messrs Gartelmann and Cavanagh recalled that he was tearful after the arraignment, although not during it. There is no doubt that he found it a stressful occasion, but that is not unexpected of any accused facing serious charges and deciding to plead guilty. Mr Cavanagh's affidavit included - "27. The Appellant agonised over the decision whether to enter a plea of guilty. The Appellant was under a great deal of pressure as a result of the nature of the proceedings and that fact he was facing the proceedings not only on his own but having to actively hide it from others. The import of a plea of guilty and likely consequences were discussed at length."

After the guilty plea 31 Mr Cavanagh wrote to the appellant on 22 March 2007, recording what had occurred and outlining what had to be done in preparation for the sentencing hearing. 32 As to what had occurred, the letter included - "The plea of guilty was entered on the basis of agreed facts. I enclose for your information a copy of the single count indictment and the statement of agreed facts. The basis of the plea of guilty is a failure to consider whether [the complainant] was consenting at the time. The prosecution no longer allege that you either knew [the complainant] was not consenting or that you did not care whether she was consenting or not. The plea of guilty was entered on the basis of extended liability both in terms of the provisions of the Crimes Act and the relativity [sic] recent High Court decision of Banditt. The Crimes Act provides that a person who is reckless as to consent is deemed to know that a person was not consenting. That is why the indictment is drafted in terms of knowledge even though the basis of the plea is recklessness. The term recklessness was considered by the High Court in the decision of Banditt. In that case the High Court rejected a defence submission that the prosecution needed to prove that a person not only did not turn their mind to whether or not a victim was consenting but also had a state of mind that they would proceed irrespective of consent. I enclose for your information an extract of the majority judgment from Banditt. The judgment is phrased in legal terms but effectively says that a failure to consider whether someone is consenting amounts to recklessness. The prosecutor also indicated a preparedness to make an important concession in relation to sentence. The prosecutor will submit that an offence of Sexual Intercourse Without Consent will require a custodial sentence unless the circumstances are exceptional. The prosecutor signed an acknowledgement of that undertaking and is accordingly bound by the undertaking for practical purposes. The concession is an important one having regard to the nature of submissions usually made on sentence for an offence of this nature by prosecutors. The usual submission is a very clear call for a sentence for full time imprisonment and an implicit message that any Judge that does not impose a sentence of full time imprisonment will be falling into appealable error. The Crown are effectively conceding that it is within range to impose a sentence other than full time imprisonment. It now falls to Mr Gartelmann and I on your behalf to persuade the Court that that is an appropriate sentence. … " 33 In relation to the appellant's attendance upon the Probation and Parole Service for a pre-sentence report, the letter said - "They will interview in relation to your background and assess your suitability for various sentencing options including the alternatives to full time imprisonment. It is important that you take care not to traverse your plea of guilty when communicating with the Probation and Parole Service. You must not assert that you had a positive belief. The basis of your plea is that in a state of intoxication you made an assumption without taking care to turn your mind to the matter. 34 In this respect the letter reflected advice by Mr Cavanagh to the appellant to the effect that remorse was important in the sentencing process, and his account had to be consistent with the guilty plea lest it appear that he was not remorseful. I do not accept the appellant's evidence, in oral evidence but not his affidavit, that in this connection his lawyers told him "not to tell the truth" or "not to say what happened". 35 The Probation and Parole Service provided a pre-sentence report dated 4 May 2007. It included that the appellant was eligible and had been assessed as suitable for a periodic detention order. 36 It was not correct that, as had been part of Mr Gartelmann's advice on 27 February 2007 and as was stated in the pre-sentence report, the appellant was eligible for periodic detention. This was realised by Messrs Gartelmann and Cavanagh, and was explained to the appellant in conference some weeks prior to the sentencing hearing. He was advised that he could apply to vacate his plea of guilty. According to the affidavit of Mr Cavanagh - "The Appellant was advised that the fact that periodic detention was not available increased the risk of his receiving a full-time sentence of imprisonment. It was explained to the Appellant that a suspended sentence of imprisonment could only be imposed in respect of a sentence of two years imprisonment. It was explained to the Appellant that a suspended sentence was considered a far lesser punishment than a sentence of periodic detention and that some sentencing Judges were resistant to imposing suspended sentences of imprisonment. It was made clear that if the Appellant chose to make an application to vacate his plea of guilty he would be best served retaining alternate legal representation and that Mr Gartelmann and I would accept responsibility for the erroneous advice that periodic detention was available." 37 I do not accept the appellant's evidence that he was told that the unavailability of periodic detention might work in his favour because the sentencing judge "will only have … suspended sentence". 38 The appellant did not seek to change his plea. 39 Mr Cavanagh's evidence also included - "The Appellant revisited the question of his plea on at least one occasion after arraignment. I recall a telephone conversation with the Appellant shortly prior to sentence on 18 May 2007, when I suggested we would need an adjournment to obtain more material. The Appellant became upset. The Appellant questioned his plea of guilty and the quality of representation he had received. I advised the Appellant he should seek independent legal advice and would need to retain alternate representation if he was to make that application. I advised the Appellant that any such application would need to be made prior to sentence. This advice was confirmed later that day in conference with Mr Gartelmann at his chambers."

The sentencing hearing 40 At the sentencing hearing the material tendered by the Crown included a certificate under s 166 of the Criminal Procedure Act relating to the camera charge. The Crown Prosecutor told the judge that the camera charge was to be remitted to the Local Court. The judge made the order then and there, after first asking Mr Gartelmann about a suitable date. It is evident from the transcript that Mr Gartelmann checked the date with the appellant, who must have known that the camera charge had not been dropped. 41 The material tendered on the appellant's behalf included a psychological report by Dr Christoper Lennings. It included the sentence, "As to the circumstances of the offence he says he was so drunk he simply assumed she was consenting, that he did not think about what he was doing". The judge was told that the Crown Prosecutor had indicated that he objected to it and that Mr Gartelmann was "happy for it simply to be deleted", and it was crossed out. 42 The appellant gave evidence at the sentencing hearing. His evidence in chief included - "Q. Now, you accept that during the course of the night you had sexual intercourse without consent, the consent of [the claimant]? A. Yes, that's correct. Q. What, if any, thoughts did you have at the time regarding her consent? A. I did not consider and I was - I didn't think - I didn't turn into - I didn't turn my mind to whether she was consenting or not. Q. You know, as a matter of fact, that she was not consenting? A. I know now. Q. And how do you feel about the fact that you did have sexual intercourse with her without her consent? A. Extremely disgraceful; very low; really bad about the whole situation. I don't know where to start, whether it's from - yeah, I feel really, really bad and it's not my personality, it's not my - what I brought to - disgusted. Q. Have your turned your mind to the question of how she may have been affected by what took place? A. Yes, I always think about that. In the last, probably, two years it's probably one of the biggest things that I think about, how much it affected her, her family and everything that - around her as well, how much - whether financially, emotionally and how much it's affected her and my actions, how much it's hurt her." 43 The cross-examination included - "Q. Now, you agree that [the claimant] did not consent to have sexual intercourse with you? A. That's correct. Q. Your evidence is that you didn't turn your mind to whether she was consenting or not? A. That's correct."

Consideration 44 It is convenient first to consider the various circumstances said to have affected the integrity of the plea of guilty. 45 The appellant said in his affidavit - "82. I believe that a combination of factors influenced me to plead guilty. 83. These factors included my fear of the perceived prejudice associated with the Crown continuing to rely on an allegation of me drugging the complainant even though the expert evidence suggested otherwise. 84. I was also very worked about the Court allowing the Crown to allege to the jury that the camera had been installed by me in the granny flat for an indecent purpose. 85. Ultimately, the most significant factor that influenced me to plead guilty was the belief that I would have been entitled to receive punishment in a form other than a full time custodial sentence. … 87. The reason why I may not have specifically brought my mind to the issue of whether the complainant was consenting is because her actions were consistent with someone who clearly was."

(a) Unfairly prejudicial evidence 46 The appellant's counsel said that the unfairly prejudicial evidence was that involved in the Crown's intention to proceed with the charge of administering a stupefying drug and to adduce evidence relating to the camera charge. It appears that the submission was that the Crown case on the two charges was weak or non-existent, and that their maintenance by the Crown was some kind of threat which influenced the appellant in entering the plea. 47 The appellant's lawyers saw a disadvantage to the appellant in trial of the drug charge together with the other counts in the indictment and admission of evidence relating to the camera charge, and I infer that this was part of the discussions in conference between the lawyers and the appellant; indeed, Mr Cavanagh said that he and Mr Gartelmann believed that the evidence relating to the camera charge would be admitted, and that he found the appellant's instructions and proposed evidence in that connection unconvincing. However, the Crown was entitled to maintain the drug charge, which the appellant could defend on its merits, and to seek to tender evidence relating to the camera charge. If there were unfairness in the drug charge being tried together with the charges of sexual intercourse without consent, there could be severance. If the evidence was inadmissible, including on discretionary grounds, it would be rejected on objection, and in any event appropriate directions would be no doubt be given. These courses remained open. What the appellant's submission characterised as a threat was the ordinary course of a trial, not a threat at all, and in the ordinary course of the trial unfair prejudice would not have been permitted. There is nothing in this circumstance.

(b) Recklessness 48 In his affidavit the appellant said that he understood that he was pleading guilty on the basis that "in my drunken state of mind, I simply failed to realise and properly consider whether the complainant was consenting at the time", and that he had been very hesitant to plead guilty as he believed "that the complainant probably did in fact consent to what had taken place". He said that "[a]lthough it had been explained to me that recklessness was considered to be the same as knowledge, I felt very uncomfortable by the fact that the indictment suggested that I knew the complainant was not consenting". He later said, in para 87 set out above, that "the reason why I may not have specifically brought my mind to the issue of whether the complainant was consenting is because her actions were consistent with someone who clearly was". 49 In his oral evidence the appellant went further, and said that his discomfort was not with the wording of the indictment but with pleading guilty when he believed he was not guilty. The effect of some rather unclear evidence was that he agreed to recklessness because that was what the Crown offered, and his evidence included - "Q. You accept, don't you, that Mr Gartelmann and Mr Cavanagh took some time explaining to you what the concept of recklessness meant? A. As I understand the recklessness meant they advised, they explained to me, but what I understood, I didn't turn my mind to it because there is no reason, as I understand there is no need to turn my mind to it because of the, I assumed because the complainant was actively participating --.

Q. I am not asking you about your understanding at the moment, I am asking you about what you were told and my suggestion is Mr Gartelmann and Mr Cavanagh did indeed explain to you the concept of recklessness? A. I don't recall them explaining or, and you also mentioned there was another document explaining or giving me another document. 50 Later in his evidence came - "Q. But you knew that the question of knowledge of consent involved an assertion that you were at the least reckless as to whether the complainant consented? A. Like I mentioned before it was not explained to me in the terminology you are using wasn't explained to me in that detail and the document you showed me I have not signed it so I didn't know at that stage.

Q. I suggest you are simply not telling the truth to this Court when you say that recklessness was not explained to you? A. It wasn't." 51 According to the statement given to the appellant's lawyers, the complainant initiated the sexual intercourse and actively encouraged the appellant. It could not have been the case that the complainant "probably did in fact consent to what had taken place". Recklessness was fully explained to the appellant, including the summary in the letter of 22 March 2007, and I do not accept that he did not understand that basis for his plea. At the sentencing hearing he swore with considerable clarity first, to acceptance that the complainant did not consent and secondly, to the fact that he did not turn his mind to whether she was consenting, and elaborated his regret that he had done so and that she had been affected by what took place. 52 The lack of understanding put forward by the appellant's counsel, as I understand it, was that the appellant did not turn his mind to whether the complainant was consenting because (as the written submissions put it) "there was no need to turn [his] mind to that issue, because not only was [the complainant] participating but at times instigating and enjoying it". Paragraph 87 of the appellant's affidavit is directed to this. I do not accept the suggested explanation for misunderstanding about recklessness, or that there was any misunderstanding.

(c) Misunderstanding as to the agreement with the Crown 53 The circumstance as put forward by the appellant's counsel was more that the Crown did not adhere to the agreement as understood by the appellant. The submission was to the effect that the appellant had understood that the Crown would not be resistant to a non-custodial sentence, but that the Crown "pushed against exceptional circumstances". 54 In the signed file note the Crown Prosecutor correctly preserved the general principle of a full-time custodial sentence, and did not commit the Crown to a position in the appellant's case. In my opinion the appellant was not led to understand that the Crown would go along with a non-custodial sentence, and it was made clear to him by Messrs Gartelmann and Cavanagh that he was exposed to a full-time custodial sentence. As the draft instructions said, there would be a sentence of imprisonment which might be a full-time custodial sentence, periodic detention or a suspended sentence, and when the appellant was advised that periodic detention was not available the first option gained prominence. Mr Cavanagh told the appellant, in the letter of 22 March 2007, that it fell to his lawyers to persuade the Court that a sentence other than full-time imprisonment was appropriate. Nothing the Crown did was to the contrary of the file note.

(d) Belief as to a non-custodial sentence 55 There was initial error in advice that periodic detention was a sentencing option, but that was corrected well prior to the sentencing hearing and the appellant was advised that he could apply to withdraw his plea; he did not do so. The advice to the appellant was not that he would receive a non-custodial sentence, and if it was intended in para 85 of his affidavit to assert that the advice left him with the belief there stated I do not accept it. On the contrary, the advice was that he was exposed to a full-time custodial sentence, and the more so because periodic detention was not available. No doubt he hoped for a sentence other than full-time custody, as is understandable, but the fact that his hope was disappointed does not impugn the integrity of the plea of guilty.

(d) Traversing the plea of guilty 56 The appellant's counsel relied on the appellant's original instructions to his lawyers. There is no doubt that they were that the sexual intercourse with the complainant was with her consent. The instructions were not sacrosanct. Many accused persons maintain their innocence in instructions to their lawyers notwithstanding that they committed the offence, but come to plead guilty if they see it in their interests to do so. The reliance was misplaced. 57 The essence of counsel's submission, as I understand it, was that even in entering the plea of guilty the appellant was so qualifying his admission of recklessness as to the complainant's consent that the plea was vitiated. For this counsel relied on the line in Dr Lennings' report excised at the sentencing hearing, "As to the circumstances of the offence he says he was so drunk he simply assumed she was consenting, that he did not think about what he was doing". The effect of the submission was that the assumption of consent was inconsistent with failure to turn his mind to whether or not the complainant was consenting. 58 What the appellant told Dr Lennings, if correctly recorded (and there is no evidence that he did tell Dr Lennings what was recorded), is consistent with the plea. In the sentence as a whole the assumption is no more than the result of failure to consider. The appellant's evidence at the sentencing hearing was quite clear. There is nothing in this circumstance.

(f) Lack of emphatic advice 59 It is quite plain, in my opinion, that the appellant understood that he should not enter the plea of guilty unless he meant thereby to admit commission of the offence. As I have said, in my opinion he was careful in understanding what was occurring. Mr Cavanagh described him as agonising over the decision whether to enter a plea of guilty, and I am satisfied that he well appreciated that he should not do so unless he meant to admit guilt. His lawyers gave detailed and appropriate advice (save for the initial error as to periodic detention), and the appellant was able to consider his position overnight in February 2007 and had to reconsider it prior to the sentencing hearing. He maintained his decision. 60 I stand back from the particular matters on which the appellant relied, and consider more generally the integrity of the plea of guilty under the primary ground that it was not attributable genuine consciousness of guilt; more widely, was there a miscarriage of justice? 61 In my opinion, the appellant freely entered the plea of guilty. It was in his interests to do so. He would no longer be exposed to conviction on multiple charges of sexual intercourse without consent and the serious charge of administering a stupefying drug. He would remain exposed to the camera charge, but could seek to have it dropped and if that did not succeed defend it in the Local Court. He had the hope, although no certainty, of a sentence other than a full-time custodial sentence for the offence to which he pleaded guilty, a matter of understandable significance to him. 62 As I have said, I consider that he well understood that by entering the plea of guilty he was admitting to the commission of the offence, and I am not persuaded that he was moved to do so by no more than perception that it was in his interests and without intending thereby to acknowledge that he was indeed guilty of the offence. I do not consider that, in the circumstances which I have recounted, there was a miscarriage of justice.

Sentence 63 The maximum penalty for the offence of sexual intercourse without consent was 14 years imprisonment. A standard non-parole period of 7 years imprisonment was prescribed (Crimes (Sentencing Procedure) Act 1999, s 54D) and was relevant as a guide or reference point (R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168). The Crown accepted before the sentencing judge that it was open to depart from the standard non-parole period, because of the guilty plea and the recklessness as to consent. 64 Early in her remarks the sentencing judge determined that a discount of the order of 12 per cent would be allowed for the guilty plea. 65 The sentencing judge's assessment of the objective seriousness of the offence was - "It was urged on behalf of Mr Sabapathy that I would find the offence was in the low range of objective seriousness. The Crown, in written submissions, pointed to a number of factors in assessing the objective seriousness of the offence. I do note the matters that were highlighted in cross-examination of Mr Sabapathy, that he had sexual intercourse with [the complainant] in a number of positions and ejaculated on her stomach, so that while he was well affected by alcohol he was sober enough to make those decisions. I accept that he was well affected by alcohol and so the offence was greatly out of character. The parties have agreed that his state of mind was reckless as to [the complainant's] lack of consent. I would agree that puts his mental state, his failure to consider or turn his mind to the issue of her lack of consent, in the low range. But in my view the sexual act itself, being penile-vaginal intercourse in a number of positions, is not in the low range. Furthermore, I have noted the victim was affected by alcohol and sleepy and she was carried into the offender's bedroom by him. So whilst I accept that Mr Sabapathy's mental state was in the low range, the act itself is in the mid range in my view, which means that the total objective seriousness of the offence has to be characterised as in the low to mid range rather than in the low range." 66 Her Honour found that the appellant "comes to court as a man of good character", and that his remorse was genuine and he was "regarded by Dr Lennings as having excellent rehabilitation prospects". 67 Her Honour said - "His wife and he are still grieving over the death of their baby. His mother, as I have noted, is seventy years of age, not in good health and prefers to live with him for reasons of her ill health, and his wife's part-time income is not sufficient to cover the mortgage payments on their home, so that Mr Sabapathy fears his wife and mother will lose the roof over their heads if he is not able to maintain his employment which he has at present. In my view they do not amount to exceptional circumstances, such as that if I decided a custodial sentence was appropriate that I would depart from that, but in my view they are circumstances which I can take into account in terms of the hardship to those persons which would result from Mr Sabapathy being put into custody. … I was urged on behalf of Mr Sabapathy, whilst it was conceded that a custodial sentence is the only realistic option, to suspend that sentence and not impose a full-time custodial sentence. I note that the Court of Criminal Appeal said in The Queen v Hartakanen, which I was referred to, that non consensual sexual intercourse is itself an extreme form of violence and one which the community expects will be taken very seriously by the courts. In my view to suspend a sentence in Mr Sabapathy's case, while noting that his remorse is genuine and he has the subjective circumstances to which I have referred, and noting the circumstances in which he committed this out of character offence, to suspend a sentence would involve me according to much weight to his sympathetic subjective circumstances and giving insufficient weight to the objective seriousness of the sexual act involved in the offence. Therefore, I think that it would involve inappropriate leniency and it is not appropriate for me to suspend a sentence that I consider is appropriate, that a full time custodial sentence is the only appropriate sentence to recognise the seriousness of the offence." 68 The appellant's submissions were brief, and it was not easy to understand how his counsel sought to make good the grounds of appeal. It is convenient to deal first with the ground of over-emphasis on the form of sexual intercourse. 69 As I understand it, the asserted over-emphasis was her Honour's arrival at the low to mid range of objective seriousness because "the sexual act itself … is not in the low range". That is, the ground went to the finding as to objective seriousness. 70 The objective seriousness properly included regard to the sexual intercourse, what the appellant did to a non-consenting complainant, as well as his recklessness as to consent. The "penile/vaginal intercourse in a number of positions" to which the appellant admitted was plainly serious. The question on appeal is whether it was open to the sentencing judge to determine that the offence was in the low to mid range of seriousness, see Mulato v Regina [2006] NSWCCA 2182 at [37] per Spigelman CJ. In my opinion, it was well open. 71 Going then to the ground of error in not finding exceptional circumstances, it was common ground that conviction for the offence of sexual intercourse without consent will ordinarily bring a custodial sentence. There may be unusual or exceptional circumstances in which a sentence other than a custodial sentence will be appropriate, but there is no litmus test for when that might be so. It is part of the exercise of the broadly based sentencing discretion in the light of all the facts in the particular case. 72 As best I understand it, counsel for the appellant submitted that the appellant's mental state of recklessness, rather than any actual knowledge that the complainant was not consenting, together with his favourable subjective circumstances and the effect of a full-time custodial sentence on his wife and mother should have led the sentencing judge to depart from a custodial sentence. No error was suggested in the account taken by the sentencing judge of subjective circumstances, but the submissions appeared to include that the finding of low to mid range objective seriousness influenced her Honour against the circumstances being exceptional, and was erroneous and thereby brought error in not finding exceptional circumstances. 73 There was no error in this respect, and in my opinion it was well open to the sentencing judge, in the exercise of the sentencing discretion, to conclude that a full-time custodial sentence was appropriate despite the appellant's favourable subjective circumstances and the effect of such a sentence on his wife and mother. 74 I go then to the ground concerned with consideration of a suspended sentence. The sentencing judge directly considered that matter. A sentence can not be suspended until it is imposed, and a sentence for a term greater than two years can not be suspended. Her Honour did not come to the sentence to be imposed before considering whether it should be suspended, and her opinion that suspension "would involve inappropriate leniency" passed over that the sentence she must have had in mind could not be suspended. However, that a suspended sentence would not appropriately recognise the objective seriousness was a sound reason for declining suspension, and these infelicities were not relied on. 75 The appellant's submission appears to have been that, if the error of finding low to mid range seriousness were corrected, a two year sentence would have been warranted; then by a massive leap, in the words of the written submissions - "Because periodic detention is no longer an alternative sentencing option for such offences, the only realistic approach is for the Presiding Judge to consider and find a 2 year sentence to be appropriate and then allow it to be suspended." 76 The opening error has not been shown, and in any event it does not follow that a two year sentence would have been suspended. In my opinion, the sentencing judge was correct in her view that a suspended sentence would not appropriately recognise the objective seriousness. 77 The final ground was that the full-time custodial sentence was manifestly excessive. This did not appear to be separately addressed in submissions, save as the converse of failure to impose a non-custodial or suspended sentence. It is sufficient that I have no doubt that the sentence was within the range open to her Honour in the exercise of her sentencing discretion. Indeed, although it is unnecessary for the outcome, in my opinion no less severe sentence was warranted in law and should have been passed, which would itself be fatal to an appeal against sentence: Criminal Appeal Act, s 6(3).

2. Leave to appeal against sentence granted but appeal dismissed. 79 ADAMS J: I agree with Giles JA. 80 LATHAM J: I agree with Giles JA. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.