Shanmugam v R

Court of Criminal Appeal (NSW)|2021-05-31|Before: Harrison J, Beech-Jones J, Cavanagh J

Judgment

HARRISON J: Mithun Shanmugam was found guilty on 27 August 2020 by his Honour Haesler SC DCJ following a judge alone trial on five counts as follows: Count 1: sexual touching without consent - s61KC(a) Crimes Act 1900. Count 2: attempted sexual intercourse without consent - s61I/s344A(1) Crimes Act 1900. Count 3: sexual touching without consent - s61KC(a) Crimes Act 1900. Count 4: sexual intercourse without consent - s61I Crimes Act 1900. Count 5: sexual intercourse without consent - s61I Crimes Act 1900.
Mr Shanmugam was sentenced by his Honour on 17 September 2020 to an aggregate term of imprisonment of 5 years with a non-parole period of 3 years.
Mr Shanmugam now appeals to this Court against his conviction and sentence on three grounds as follows: Ground 1: The conviction cannot be supported having regard to the evidence. Ground 2: The sentence imposed was manifestly excessive. Ground 3: The trial judge failed to give a warning regarding the disadvantage to the appellant by the delayed complaint pursuant to s 165B of the Evidence Act 1995.

Ground 1

The trial judge relied upon Susie's account of what occurred to convict Mr Shanmugam on all five charges. It was submitted on behalf of Mr Shanmugam that there was an inherent inconsistency and implausibility in Susie's accounts that should have raised a reasonable doubt in the mind of the trial judge. He contended that the different and changed versions given by Susie raised the substantial possibility that the trial judge was mistaken in accepting her evidence to the required standard.
Mr Shanmugam contended that Susie's evidence that she sent the text message to Ms Farrugia saying "Help" at 9.12am, which she maintained was when the offences were occurring, did not accord with her evidence that the offences took place a short time after she awoke at about 5am. Susie gave the following evidence about the timing of the offences: "Q. And did you say that happened at 5am? A. I wasn't aware of any timeframe at that point because I had drunk quite a lot that night, so I don't know if my timeframes are correct or not. I was awoken to her throwing up and to me it probably felt like 5am, because we didn't go to sleep, I don't think for very long. Q. Do you accept you told Senior Constable Phillip that it was 5am that you were awoken by Claudia throwing up in the bathroom? A. I'm saying that I probably guessed the time, as I don't recall the timeframe which we went to bed. Q. So when you were telling Senior Constable Phillip what happened, you were guessing. Is that right? A. I wasn't guessing in what I said, but when it comes to time frames, it's a little bit difficult to remember when you're going through something traumatic. It wasn't exactly at the forefront of my mind as to what time it was. I was trying to regather that the best I could when I was in a state of shock. Q. Well at the time of speaking to Senior Constable Phillip, you knew you had sent a text message at 12 minutes past 9am to Claudia. A. I hadn't looked at the time, and obviously later in this had been looked at when I gave my statement. The time when I saw her, no, I hadn't looked at --- overlooked that. Q. You definitely told Senior Constable Phillip about the text message exchange between you and Matt, didn't you? A. I don't know if you [sic] told the constable. Those messages were forwarded onto Dean. I'm saying I don't remember the entirety of our conversation. Q. You would accept that if you were woken at 5am to Claudia throwing up in the toilet, at text message at 12 minutes past 9 doesn't make much sense does it? A. I'm saying that the time I gave the 5am, I don't know at the time if that was correct, and later, obviously realised it wasn't. We were inebriated that night, so my timeframe is not something I recall if it was specifically 5am. That may have been when we've gone to bed, I don't know. I wasn't looking at a clock around me. All I know is that's what I woke up to the sound of, and later I sent a text message. So no, it would have been 5am when we woke up, and I was not in a good place when I went and spoke with the detective initially."
Mr Shanmugam submitted that this evidence about the timing of the offences does not make sense "when looked at rationally". He submitted that if she woke at 5am and was the victim of multiple sexual assaults and sexual touching a short time later, her text message at 9.12am "must have been for some other reason". He submitted that if there is doubt as to when the offences are said to have occurred, then there must also be a doubt as to whether Susie's account is reliable.
The difficulty with that submission is that Susie unambiguously accepted that her original understanding or recollection that the offences occurred at 5am was not necessarily accurate. Indeed, the believability of her account is on one view enhanced by the fact that she did not purport to correlate the offences with the text message in a way that she could have if she were minded to fabricate a version that eliminated the type of discrepancy that Mr Shanmugam's current submission seeks to exploit.
In any event, the trial judge's resolution of this allegedly significant discrepancy is coextensive with his acceptance of Susie's evidence and his rejection of the evidence of Mr Shanmugam. His Honour's assessment of Susie was in the following terms: "101 The complainant was an impressive witness. Her answers were clear and direct. She was not shaken in cross-examination. Her account was consistent. She was under no obligation to detail every act done to her when she spoke about the events to GH and others but she more than adequately conveyed to GH and others what had been done to her. That the complainant in evidence could not remember details of each complaint is not at all surprising, nor does it devalue her credibility. She did not meet with Constable Philip to give a detailed account but to outline what had happened to her so she could discuss her options. Again, that is not unusual and neither it nor the week long delay in making the formal complaint diminished the power of her evidence. 102 She only provided a comprehensive account when she sat down with Detective Simpson on 15 January but until then she had no obligation or need to spell out exactly what the accused had done to her or to give others all the intimate details. 103 The attack on her because of alleged inconsistencies was forcefully rebutted by her and did not resonate with me. Her credibility as a witness was not dented. It is, as I must now direct myself, not at all uncommon for people not [to] remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. This case illustrates why that direction is now mandated. 104 During her cross-examination she at times volunteered answers beyond what was asked of her but those responses were generated by questions that demanded explanation or questions that carried an implication that she could not accept. 105 She described each act charged as a count. She was clear in her rejection of the suggestion any were with her consent. If accepted beyond reasonable doubt, her version of events proves each count. 106 She was familiar with the accused. She did cuddle him at the club, as both she and he did others. The CCTV footage shows she was no more familiar with him than she was with other friends that night. Nothing in that behaviour could be regarded as an invitation for a sexual encounter. She may have snuggled on the couch while watching TV downstairs but that could not be regarded as an invitation for a sexual encounter. 107 She did let the accused sleep in her bed but again, in the circumstances, that could not be regarded as an invitation for a sexual encounter. To the contrary I accept that she asked her friend GH not to sleep downstairs and leave her alone with the accused. 108 Her own self-analysis when texting GH and saying she was disappointed she had put herself in this position is not an admission she consented to what occurred. The complainant's self-blaming cannot of itself be regarded as diminishing her credibility. 109 Her disappointment that the accused had breached the trust she had in him as a close friend was palpable but that provides no foundation for her to invent a story. The reasons put for her inventing a story were rejected by her. They cannot withstand close analysis, but I direct myself it is not for the defence to prove she had a motive to lie and my rejection of those propositions does not advance the prosecution case. 110 It is important to note however, that if both she and the accused wanted to have consensual sexual intercourse that night there were opportunities for it to happen but on both versions there was no consensual intercourse. 111 I can accept the complainant's version of events it was convincing it was consistent from the first "Help' at 9:12am on 7 January 2019 to her telling me on 17 August 2020 she did not consent to any of the activity alleged."
By contrast, his Honour's assessment of Mr Shanmugam was as follows: "96 The only element seriously put in dispute by the accused is whether the acts alleged occurred at all. Mr Shanmugam admitted in his account to police and his evidence at trial that he was aware of his moral and legal responsibilities in relation to obtaining consent. His case is that he initially rejected or failed to respond to an apparent advance by the complainant and that although keen enough to put on a condom in anticipation of consensual sex - nothing happened. 97 The accused was not an impressive witness. In his account to police and in his evidence he raised, at times subtly, at times too blatantly, matters designed to paint the complainant in a bad light: she was drunk before she got to the party, she was flirty, she was aggressive, she sat on another man's lap, she behaved seducingly, she was crude in reference to his anatomy, she aggressively demanded he come back to her home and stay with her despite his repeated attempts to leave and go home. These comments do not sit well with his purchase of condoms before going to McDonalds or his text exchange with his friend at 2:35am 'hopefully something happens.' 98 I am prepared to accept that the accused is a sensitive man and apologises too readily. I accept he was inexperienced and inexperienced with Australian women. But he understands issues about consent and that he needed to be 100% sure before engaging in sexual relations. He may well have misinterpreted the complainant's behaviour and thought as he said to his friend in the 2:25am text that 'hopefully something happens': Exhibit H. But that said his evidence does not ring true. It glosses over the obvious - the texts. He seeks to blame the complainant and plays up her 'apology.' His account was a reconstruction of events designed to meet what he anticipated would be said against him; designed to answer what he knew would be alleged. He knew what would be alleged because he well know (sic) what he did that morning. 99 His account failed to address the following questions that arise from the his own case- (1) If the complainant was keen why didn't they have sex as she obviously wanted - there being opportunity in that GH was very drunk and absent. (2) Why if on his account the complainant never saw him put on or take off the condom did she specifically say he put it on before the acts said to constitute count 5. His raising of the condom with police indicates he wanted to diffuse a potentially damaging piece of evidence and shows he had thought out in advance how he might deal with the allegations. (3) If he had not done anything untoward to the complainant why reply 'OMG omg no no. Shit Fuck what have I done' in response to her initial accusation 'you tried and put it in and I pulled away multiple times.' I cannot accept his assertion he did not read the whole text. His response is not at all consistent with his explanation. His use of cultural differences relating to respect for women as an excuse again shows calculation and can only be regarded as an attempt to explain away the inexplicable. (4) Why then tell GH 'what I've done is completely bad and unacceptable' if he had not done something completely bad and unacceptable. If nothing had happened a denial was called for at that point. There was no need to be so apologetic or apologetic at all about what he said was a brief and short and consensual cuddle, not markedly different to his account of what occurred on the lounge downstairs while watching TV. (5) If he had not done the thing alleged why threaten suicide - such a threat can only be both an admission of the enormity of what he had done and an attempt to dissuade the complainant from taking the matter further. 100 The answers to police questions were contrived. They were not convincing. They did not become any more convincing when given on oath. His response to the accusations at first and at trial is to apologise, appear submissive until he sorts things out and formulates a response, a solution that may work to his benefit. His responses at trial were contrived. He has constructed an exculpatory version of events, after the event. He continued to do so while in the witness box when he told me the time he returned home was before 8:00am. Notwithstanding the accused's good character, I find his account to be untruthful in significant respects. I can comfortably reject the accused version of events."
Mr Shanmugam drew upon the wisdom enshrined in what was said by Brennan J in Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 at [11]: "When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue…"
His Honour gave himself a direction in accordance with this authority.
I have reviewed the whole of the evidence in the trial. In particular, having regard to Mr Shanmugam's submissions about it, I have also paid particular regard to the evidence of Ms Farrugia, Ms Di Maggio and Giuseppe D'Acunto. With respect to Ms Farrugia, Mr Shanmugam submitted that in the text messages she sent to him, the highest that the allegation got was that he "tried to have sex with her". With respect to Ms Di Maggio, Susie told her that Mr Shanmugam had assaulted her that morning, whereas Ms Di Maggio only recalled being told by her during a phone call on the day of the events in question that he had "felt her up". Ms Di Maggio also said that later in the week Susie disclosed that "he raped" her. Finally, Mr D'Acunto said that he was told by Susie that Mr Shanmugam had "throughout the night physically touched her", was "inappropriate" and that he "tried to force himself on her". Mr D'Acunto confirmed that Susie told him that in his evidence in the trial. However, in cross-examination, Mr D'Acunto admitted that in the statement he provided to the police some eight months before giving evidence, he did not mention being told about Mr Shanmugam or that he had touched Susie at all. Mr Shanmugam contended that these matters were inconsistencies or discrepancies that affected the reliability of Susie's evidence.
In Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 at [19], the majority said this: "19 The test as expressed in Chamberlain (No.2) by Gibbs C.J. and Mason J., suggests that a verdict which in the view of a Court of Criminal Appeal is unsafe or unsatisfactory is necessarily a verdict that is unreasonable, or is not supported, at least upon the requisite standard of proof, by the evidence. For our part, we would think that there might be verdicts falling within the concept of miscarriage of justice, as that expression is used in the common criminal appeal provisions, by reason of some defect or weakness of the evidence even though on the evidence it was open to the jury to be satisfied of guilt beyond reasonable doubt, as, for example, where there is some feature of the evidence which raises a substantial possibility that the jury may have been mistaken or misled: see Davies and Cody v. The King (1937) 57 CLR 170, at p 180. Whether or not this be so, it is clear that the question whether a verdict is unsafe or unsatisfactory involves a Court of Criminal Appeal undertaking an independent examination of the relevant evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused. That function is not discharged merely by a consideration of whether there was a sufficiency of evidence to sustain a conviction, for it is clear that a verdict may be unsafe or unsatisfactory notwithstanding that there was evidence sufficient to entitle a reasonable jury to convict… 20 A Court of Criminal Appeal must make an independent assessment of the evidence, both as to its sufficiency and its quality…"
Having independently examined all the evidence, I consider that it was clearly open to his Honour to be satisfied beyond reasonable doubt as to Mr Shanmugam's guilt on all counts. In expressing that opinion, I necessarily put aside the importance or significance of any advantage that his Honour may have enjoyed in seeing and hearing the witnesses at the trial. My assessment can by definition only be made upon the more limited review of the transcript of evidence and the exhibits in the proceedings.
The evidence given by Susie is compelling. She has not in my view been shown by cross-examination or otherwise to be unreliable or untruthful or to have resiled from her version of what occurred. The fact that Mr Shanmugam ended up sleeping in her bed says nothing about her insistence that the matters of which she complained were not consensual. Indeed, the terms and tone of the text message exchange between them later the same day are highly supportive of the fact that Susie did not consent to any sexual activity with him and that he well understood it. It was clearly open to his Honour to reject Mr Shanmugam's account of the events to the effect that it was Susie who insisted that he stay and sleep in her bed after he said he was going home or that it was Susie who had initiated the "cuddling" with him.
The evidence in my opinion was sufficient to establish that it was open to the trial judge to be satisfied beyond reasonable doubt that Susie was the victim of five instances of sexual or indecent assault.
I note in passing that his Honour's analysis of the evidence was thorough, logical and persuasive. However, it is no part of this Court's inquiry to determine whether his Honour's decision was "correct". The present inquiry is directed to the assessment of whether his findings were not reasonably open. In this respect I gratefully adopt what was said by Davies J in RP v R [2015] NSWCCA 215 at [48] and [52] as follows: "[48] For a verdict to be unreasonable it is not enough that review of the evidence demonstrates that it was possible for the tribunal of fact to reach a different conclusion: Lazaris v R [2014] NSWCCA 163 at [65]. As Hayne J said (Gleeson CJ and Heydon J agreeing) in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113]: But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard, or as the joint judgment said in Filippou at [56], [T]he question for the Court of Criminal Appeal was not whether it was 'satisfied that the judge's account was correct' but whether her Honour's findings as to the sequence of events were not reasonably open. … [52] The significant difference between a trial with a jury and a judge alone trial is that the judge is obliged to make findings of fact and to identify the principles of law applied by the judge: s 133 Criminal Procedure Act 1986 (NSW). The reasoning the judge has employed to reach the relevant findings is exposed to examination and analysis in the way an inscrutable jury verdict cannot be. The reasoning will identify what matters have been considered by the judge in making any finding. That enables this Court to determine at least whether there is no or insufficient evidence to support a finding or that the evidence was all one way or has misdirected himself or herself on a matter of law."
In the present appeal, no suggestion is made that his Honour made a discrete error that invalidated his reasoning processes or vitiated his conclusions. Mr Shanmugam understandably directed his attention to the single question of whether his Honour's findings were not reasonably open. In the case of an appeal from the decision of a judge alone contending that the verdicts are unreasonable, this Court is inevitably provided with the decision of the trial judge. It is in that sense artificial to maintain that any such judgment will not be informative and at least potentially influential in the decision of this Court. In the way identified by Davies J, the reasoning of a trial judge sitting without a jury is material available to this Court that assists it permissibly to identify the matters that have been taken into account or considered in making relevant findings.
As Adamson J emphasised in Williams v R [2021] NSWCCA 25 at [190], "[190] … it is important, as the High Court said in Pell v The Queen, at [39], to proceed upon the assumption that the tribunal of fact (in this case, the trial judge) assessed the complainant's evidence to be credible and reliable. The court examines the whole of the evidence before the tribunal of fact to ascertain whether, notwithstanding that assessment, the court is satisfied (because of inconsistencies, discrepancies or other evidence) that the tribunal of fact, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt."
Even though I am satisfied that his Honour's conclusions were sound, I wish to re-emphasise that, having considered the evidence myself, I am otherwise independently satisfied that verdicts of guilty on all five counts were open to him.
I would dismiss Mr Shanmugam's first ground of appeal.

Ground 3

Section 165B of the Evidence Act 1995 is in the following terms: 165B Delay in prosecution (1) This section applies in a criminal proceeding in which there is a jury. (2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay. (5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury. (6) For the purposes of this section-- (a) delay includes delay between the alleged offence and its being reported, and (b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay. (7) For the purposes of this section, the factors that may be regarded as establishing a "significant forensic disadvantage" include, but are not limited to, the following- (a) the fact that any potential witnesses have died or are not able to be located, (b) the fact that any potential evidence has been lost or is otherwise unavailable.
It is not in contest that his Honour "failed" to give himself a warning in accordance with this section. That is unsurprising having regard to the fact that he was sitting without a jury and that he was not asked to consider giving such a direction. The latter consideration means that Rule 4.15 is engaged.
Mr Shanmugam submitted notwithstanding these matters that his Honour erred in not giving himself a direction regarding prejudice caused to him arising from the delay in the making of the complaint to the police. Susie reported the matter to Constable Louise Phillips on 14 January 2019, or 8 days after the incident, after taking a week of unpaid leave from work. Mr Shanmugam was later arrested and participated in an interview with the police on 17 January 2019 in which he asserted that he had used a condom that was discarded at the apartment. Mr Shanmugam maintained that forensic examination of the condom could have provided supporting exculpatory evidence on his account that he did not have penile/vaginal intercourse with Susie and that her DNA would not have been present on the exterior of the condom.
Although counsel for Mr Shanmugam did not ask for the direction in question, he did make submissions concerning delay in these terms: "There is also evidence of a delay in one week in reporting the matter to the police. It is my submissions [sic] the complainant was aware that police would investigate whether any forensic evidence would be available and delayed making the report in an attempt to frustrate the procedures of the police."
This Court was referred to its decision in Binns v R [2017] NSWCCA 280 in which there had been a delay of four and a half years between the alleged offence and the first complaint. A "focus of the appeal" was that if complaint had been made within days of the alleged incident, there may have been available DNA evidence to confirm or contradict the complaint. The Court found at [22] that: "…under the current statutory regime, DNA evidence will not usually be evidence falling within s 165B(2) because it will rarely be possible for a judge to say that he or she is 'satisfied' that the absence of such evidence involves a significant forensic disadvantage to the defendant; there is no basis for knowing whether the evidence would be inculpatory or exculpatory. In short, this was not the kind of disadvantage to which the section was directed."
In R v Shanmugam [2020] NSWDC 482, his Honour dealt with delay at [23]: "While a complaint was immediate (the 'Help' text at 9:15am) there was a delay of a week before the complainant went to police and then the next day provided her formal statement. Such delays do not necessarily indicate that the allegation is false. There may be good reasons why a complainant in a sexual assault may hesitate and delay making, a complaint about such an assault: s293 Crimes Act 1900."
However, his Honour rejected the submission by trial counsel that Susie's delay in reporting the assaults diminished the power of her evidence.
In my opinion, the fundamental difficulty with Mr Shanmugam's submission is that he does not specifically identify the existence of any significant forensic disadvantage. The hypothetical absence of Susie's DNA on the exterior of the condom may well have been exculpatory. Conversely, the presence of her DNA on the condom would on her account of events have been inculpatory. However, the presence of Susie's DNA on the condom would on Mr Shanmugam's account have inculpated him falsely. Finally, in the events that occurred, the absence of the condom for biological testing may well have resulted in a significant forensic advantage for Mr Shanmugam having regard to the evidence that his Honour accepted. At his Honour's remove from the events in question, nothing in the trial could raise these competing possibilities to any level higher than speculation.
I would refuse the grant of leave to Mr Shanmugam to raise this ground of appeal.

Ground 2

Mr Shanmugam contends that his Honour's sentence was manifestly excessive. In accordance with well recognised authority, that is a submission that the sentence that was imposed was unreasonable or plainly unjust. Mr Shanmugam promotes that contention upon the basis that his Honour erred in failing properly to take into account the principles of totality described in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40]: "To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."
Each count was part of a continuing course of conduct that started with sexual touching and culminated in two counts of sexual intercourse. The period over which the conduct took place was relatively short. It was arguably all part of a single course of conduct. However, in his remarks on sentence R v Shanmugam (No 2) [2020] NSWDC 555, his Honour described the offending as follows: "[13] All these crimes occurred within a short space of time. They occurred in the complainant's home; where she was entitled to feel safe and secure. All involved the violation of the friendship the complainant thought she had with Shanmugam and the trust she showed in him by allowing him to sleep in her bed after the party. His actions against her were persistent. The acts escalated in their severity. The attempt offence caused her pain. The acts of intercourse were of very brief duration. One brief act of penile vaginal intercourse was unprotected as a condom was not used. As with most such crimes they were invasive and degrading acts of personal violence, one reason for the high maximum penalties and for the s 61I offences, the standard non-parole period. [14] The briefness of the acts and other circumstances do not place any [of] these offences in the middle of the range taking into account only objective features. Aggravating features, such as physical harm, ejaculation and threats, were absent. Despite the seriousness of what occurred the s 61I offences fall more toward the bottom of the range of what was none the less serious offending."
Mr Shanmugam submitted that despite these matters identified by his Honour, there was significant overlap between or among the counts so that the aggregate sentence was excessive. In particular, Mr Shanmugam contended in effect that there was an irreconcilable tension between the length of the sentence and his Honour's finding that the s 61I offences fell more towards the bottom of the range.
Mr Shanmugam does not suggest that his Honour erred in any particular way beyond an assertion that the sentence is manifestly excessive. In this context, it is instructive to consider his Honour's remarks concerning the structure of the sentence he intended to impose: "[29] I am required to indicate an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of Shanmugam's offending behaviour: Mill v The Queen (1988) 166 CLR 59 at 62-63; Nguyen v The Queen [2016] HCA 17. Although one sentence could not encompass the criminality of all that occurred there can be considerable concurrence as each count was part of the one short event; each had some common features, the purposes of sentencing apply to each offence and those purposes overlap: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41. [30] My findings in relation to objective seriousness and the subjective case for the offender provide reasons for departure from the standard non-parole periods and justify a finding of special circumstances. That said, the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [59]."
His Honour also said this: "[31] [Mr] Shanmugam, in my assessment, is at low risk of re-offending. His background, age, relative immaturity, combined with the fact that he had no prior record and that this would be his first period of incarceration far away from family, warrant a significant element of leniency. But mitigating circumstances can go only so far. Objectively serious offences were committed. [32] [Mr] Shanmugam offended against his friend and breached her trust in him. His actions were not wanted and he well knew this. As a consequence of his crimes he will lose his liberty and his dreams of a life in Australia are in ruins. He must spend a period in gaol. For crimes such as these retributive sentences are demanded so that others come to understand the consequences of acting against others without their consent. The sentence must also operate to ensure that dignity of the complainant is vindicated and express the community's disapproval of this serious offending."
In my opinion, his Honour's aggregate sentence of 5 years, with a non-parole period of 3 years, was neither unreasonable nor plainly unjust. This ground of appeal should be dismissed.

Orders

In my opinion, the following orders should be made: 1. Dismiss the appeal against conviction. 2. Grant leave to appeal against sentence but dismiss the appeal. 3. Refuse leave to rely upon ground 3.
BEECH-JONES J: I agree with Harrison J.
CAVANAGH J: I agree with the orders proposed by Harrison J and with his Honour's reasons. I only wish to add the following.
In Pell v The Queen ((2020) 268 CLR 123) the Court said at [39]: "[39] The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence[18], in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt."
In this matter, the trial judge accepted the evidence of the complainant. I have carried out my own independent examination of the record in order to ascertain whether because of any inconsistencies, discrepancies or other evidence, the trial judge ought to have ascertained a reasonable doubt as to the appellant's guilt.
In my view, the matters raised by the appellant such as the timing issue, the delay (slight) issue and the differing recollections as to the precise words used by Susie to describe what had happened are not such that, having accepted Susie's evidence as credible and reliable, the trial judge ought to have entertained a reasonable doubt as to the appellant's guilt.

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