Jai Vatan Singh v The Queen - [2013] VSCA 300

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0054

JAI VATAN SINGH	Applicant
	v
THE QUEEN	Respondent

---

JUDGES	MAXWELL P, COGHLAN JA and DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 August 2013
DATE OF JUDGMENT	20 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 300
JUDGMENT APPEALED FROM	DPP v Singh (Unreported, County Court of Victoria, 31 August 2012, Judge Pullen)

CRIMINAL LAW – Appeal – Conviction – Aggravated burglary – Indecent assault - Entry to house as trespasser – Entry to bedroom with intent to commit indecent assault – Whether capable of constituting burglary – Whether decision in R v Chimirri [2010] VSCA 57 should be overruled – Whether Zoneff warning required – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Sentencing principles – Specific deterrence – Earlier sexual offence charge discontinued – Whether relevant to specific deterrence – Crown concession – No different sentence – Sex offender registration and reporting – Whether discontinued charge relevant to risk assessment – Order imposing reporting requirements set aside – Sex Offenders Registration Act 2004 (Vic) ss 8(2)–(3), 11, Criminal Procedure Act 2009 (Vic) s 281, Sentencing Act 1991 (Vic) s 6B.

Appearances:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
COGHLAN JA
DIXON AJA:

After a trial the applicant was convicted of one count of aggravated burglary and three counts of indecent assault. He was sentenced to three years and 10 months’ imprisonment, and a non-parole period of two years was fixed. The sentencing judge ordered that he be registered as a sex offender, with an eight year reporting period, under the Sex Offenders Registration Act 2004 (Vic).

He now seeks leave to appeal against conviction and sentence. For reasons which follow, we would grant leave to appeal against conviction but would dismiss the appeal. We allow the appeal against sentence to the extent necessary to set aside the sex offender registration order.

A.CONVICTION APPEAL

The conviction for aggravated burglary

The essential facts can be briefly summarised. At five o’clock in the morning, the applicant entered a house occupied by the victim (S) and her husband and baby. He entered the house as a trespasser. He did not know S or her husband, and had no permission to enter their house. Once inside, he went up the stairs and entered the bedroom where S was asleep in a bed with her baby. He kissed her on the lips (charge 2) and then — after an interruption when S’s husband woke up — kissed her five or six times on the cheek, forehead and arm (charge 3) and then touched her on the lower back (charge 4).

The issue raised by the first ground of appeal concerns the time at which the applicant was said to have formed the intent to commit indecent assault. It is contended that the trial judge erred:

in allowing the Crown to…

Grounds of appeal

[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

Case: [2013] VSCA 300
Decision Date: 20 December 2013

CaseChat Overview and Summary

The appellant, Jai Vatan Singh, appealed against his conviction and sentence for aggravated burglary and indecent assault, arguing that the trial judge had erred in various respects. The case was heard by the Court of Appeal of Victoria. Singh was convicted of entering a house as a trespasser and subsequently entering a bedroom with the intent to commit an indecent assault. The central legal issues were whether these actions could constitute burglary, if the decision in R v Chimirri should be overruled, whether a Zoneff warning was required, and the relevance of a discontinued earlier sexual offence charge to sentencing and risk assessment.

The court found that the actions of entering the house and the bedroom with intent to commit an indecent assault did constitute burglary under the common law. The court held that the decision in R v Chimirri was not applicable to the facts of the case. The court further found that the trial judge was not required to give a Zoneff warning. Regarding the earlier sexual offence charge, the court held that it was not relevant to the assessment of specific deterrence but could be taken into account for the purposes of risk assessment under the Sex Offenders Registration Act 2004. The court held that the appeal against conviction was without merit and dismissed it. However, the court set aside the order imposing reporting requirements under the Sex Offenders Registration Act 2004, finding that the discontinued charge should not have been considered in determining those requirements.

The final orders of the court were that the appeal against conviction was dismissed and the appeal against sentence was partly allowed, with the order imposing reporting requirements under the Sex Offenders Registration Act 2004 set aside.

Orders