Rajendran v R [2010] NSWCCA 322

Rajendran v R [2010] NSWCCA 322

The amendment deleting the circumstance of aggravation was made with consent under s 20 of the Criminal Procedure Act 1986, not under s 21, because the original indictment was not defective; the issue was only that the evidence did not support the pleaded aggravating circumstance. There was no delegation of judicial power, as the court granted leave and the Crown amended its own indictment. Re-arraignment was not required because no new offence was charged: the remaining s 61I offence was a statutory alternative available under s 61Q. The sentencing judge made no demonstrated error, correctly assessed objective seriousness within the mid-range, took relevant subjective matters into...

Jurisdiction
Australia
Judgment Date
17 December 2010
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Application for Leave to Appeal Against Sentence From the District Court
Outcome
Appeal against conviction dismissed; leave granted to appeal against sentence; appeal against sentence dismissed.
Legal Topics
['sexual Intercourse Without Consent' 'aggravated Sexual Intercourse Without Consent' 'amendment of Indictment' 'statutory Alternative Verdict' 're Arraignment' 'manifestly Excessive Sentence' 'standard Non Parole Period']
['criminal Law' 'criminal Procedure' 'sentencing'] ['sexual Intercourse Without Consent' 'aggravated Sexual Intercourse Without Consent' 'amendment of Indictment' 'statutory Alternative Verdict' 're Arraignment' 'manifestly Excessive Sentence' 'standard Non Parole Period']

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Procedural Posture

Criminal Appeal / Appeal Against Conviction and Application for Leave to Appeal Against Sentence From the District Court

Legal Issues

  1. 1 ['Whether deletion during trial of the circumstance of aggravation from the indictment involved legal error under ss 20-22 of the Criminal Procedure Act 1986.' 'Whether the trial judge wrongly delegated amendment of the indictment to the prosecutor.' 'Whether the appellant was required to be re-arraigned after the indictment was amended to remove the circumstance of aggravation.' 'Whether the sentence of imprisonment for 7 years and 6 months with a non-parole period of 5 years was manifestly excessive.']

Ratio Decidendi

The amendment deleting the circumstance of aggravation was made with consent under s 20 of the Criminal Procedure Act 1986, not under s 21, because the original indictment was not defective; the issue was only that the evidence did not support the pleaded aggravating circumstance. There was no delegation of judicial power, as the court granted leave and the Crown amended its own indictment. Re-arraignment was not required because no new offence was charged: the remaining s 61I offence was a statutory alternative available under s 61Q. The sentencing judge made no demonstrated error, correctly assessed objective seriousness within the mid-range, took relevant subjective matters into...

Court Disposition

Appeal against conviction dismissed; leave granted to appeal against sentence; appeal against sentence dismissed.

Orders

  • ['Appeal against conviction dismissed.' 'Leave granted to appeal against sentence.' 'Appeal against sentence dismissed.']