(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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.