Agarwal v Coutts (No 2)

Case [2024] ACTSC 92


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Agarwal v Coutts (No 2)

Citation: 

[2024] ACTSC 92

Hearing Date: 

22 March 2022

Decision Date: 

8 April 2024

Before:

Baker J

Decision: 

(1)    The appellant’s Application in Proceedings filed on 20 March 2024 seeking orders for the admission of further evidence is dismissed;

(2)    The appeal is dismissed;

(3)    The appellant’s sentence is varied to take account of custody served prior to the grant of bail as follows:

(a)    The appellant is sentenced to a term of 21 months’ imprisonment, commencing on 14 January 2024 and expiring on 13 October 2025.

(b)    The appellant will be eligible for parole on 13 December 2024.

Catchwords: 

APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –  Appeal against sentence imposed by Magistrates Court – act of indecency against a person aged under 16 years – victim was the appellant’s employee – rolled up charges – whether Magistrate erred in the form of imprisonment imposed – nature of ex tempore reasons – no error established – whether offending was deliberate and planned – whether appellant had only demonstrated limited remorse – use of comparative cases – single comparative case – key difference with comparative case – new evidence regarding appellant’s health not admissible – appeal dismissed.

Legislation Cited: 

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33(1), 34A, 65(1)

Crimes Act 1900 (ACT) s 61(2)

Magistrates Court Act 1930 (ACT) ss 207, 208(1)(e), 214, 216, 218

Cases Cited: 

Acuthan v Coates (1987) 6 NSWLR 472 at 479; 24 A Crim R 304

Betts v The Queen [2016] HCA 25; 258 CLR 420

Biddle v Gatherer [2021] ACTSC 236

Buxton v R [2017] NSWCCA 169

Cao v R [2020] NSWCCA 223

Currie v R [2013] NSWCCA 267

Director of Public Prosecutions v Moala (No 3) [2023] ACTSC 306

Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

Director of Public Prosecutions v Ip [2005] ACTCA 24

Doudar v R [2021] NSWCCA 37

Green v The Queen [2011] HCA 49; 244 CLR 462

Greenwood v Barlee [2018] ACTSC 46

Greenwood v Barlee [2018] ACTCA 62

Henry v The Queen [2019] ACTCA 5

Hili v The Queen [2010] HCA 45; 242 CLR 520

Hunt v The Queen [2019] NSWCCA 118

Inglis v Adamson [2024] ACTSC 4

IT v Knight [2020] ACTSC 101

Ji v Stone [2023] ACTSC 54

Kentwell v The Queen [2014] HCA 37; 252 CLR 601

Khoury v R [2011] NSWCCA 118; 209 A Crim R 509

Kristiansen v Yeats [2022] ACTSC 351

Mahanay v Phelan [2023] ACTSC 162

Millard v Pomeroy [2022] ACTSC 319

Morrison v Maher [2021] ACTSC 312

MT v The Queen [2021] ACTCA 26; 17 ACTLR 26

Porter v The Queen [2024] ACTCA 9

Power v The Queen [1974] HCA 26; 131 CLR 623

R v Achurch [2011] NSWCCA 186; 216 A Crim R…

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Details
AGLC
Agarwal v Coutts (No 2) [2024] ACTSC 92
Case
[2024] ACTSC 92
Decision Date

CaseChat Overview and Summary

The appellant, Mr Agarwal, was convicted in the Magistrates Court of Queensland of acts of indecency against a person aged under 16 years. The victim, who was under 16 at the time of the offences, was Mr Agarwal’s employee. Mr Agarwal appealed against his sentence, arguing that the Magistrate had erred in the form of imprisonment imposed. He contended that the Magistrate did not sufficiently consider whether the offending was deliberate and planned, and that the Magistrate did not take into account his limited remorse. Additionally, Mr Agarwal sought to adduce new evidence regarding his health, which he argued should have been considered by the court.

The court considered whether the Magistrate had erred in the form of imprisonment imposed and whether the offending was deliberate and planned. The court held that the Magistrate had not erred in imposing the form of imprisonment, and that the offending was deliberate and planned. The court noted that the Magistrate had considered the relevant factors in determining the sentence, including the appellant’s remorse, and that the appellant had not established any error in the Magistrate’s approach. The court also held that new evidence regarding the appellant’s health was not admissible as it was not available at the time of the original sentencing hearing.

The appeal was dismissed, and the appellant’s sentence was varied to take account of custody served prior to the grant of bail. The appellant is sentenced to a term of 21 months’ imprisonment, commencing on 14 January 2024 and expiring on 13 October 2025. The appellant will be eligible for parole on 13 December 2024. The appellant’s application for the admission of further evidence was also dismissed.

Orders

Orders of the court

(1) The appellant’s Application in Proceedings filed on 20 March 2024 seeking orders for the admission of further evidence is dismissed;

(2) The appeal is dismissed;

(3) The appellant’s sentence is varied to take account of custody served prior to the grant of bail as follows:

(a) The appellant is sentenced to a term of 21 months’ imprisonment, commencing on 14 January 2024 and expiring on 13 October 2025.

(b) The appellant will be eligible for parole on 13 December 2024.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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