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…
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- Case
- [2013] VSCA 300
- Decision Date
CaseChat Overview and Summary
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.
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