R v Singh
[2024] QCA 50
•5 April 2024
SUPREME COURT OF QUEENSLAND
CITATION:
R v Singh [2024] QCA 50
PARTIES:
R
v
SINGH, Gurjit
(applicant)FILE NO/S:
CA No 264 of 2023
DC No 2427 of 2023DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Brisbane – Date of Sentence: 5 December 2023 (Moynihan KC DCJ)
DELIVERED ON:
5 April 2024
DELIVERED AT:
Brisbane
HEARING DATE:
5 March 2024
JUDGES:
Morrison and Dalton JJA and Brown J
ORDERS:
1. Application for leave to appeal against sentence is refused.
2. The Registrar of the Court of Appeal is directed to amend the District Court order sheet by deleting the words “The suspension is operational for 18 months” and inserting in lieu the words “The suspension is operational for 15 months”; and this amendment is to be reflected in the verdict and judgment record issued consequent upon this appeal.
CATCHWORDS:
CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – SEXUAL OFFENCES – CUSTODIAL SENTENCE IMPOSED – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to three counts of sexual assault – where the complainant was intoxicated, and the applicant was her Uber driver – where the applicant has no prior convictions and demonstrated remorse – where the applicant was sentenced to a period of imprisonment which was to be suspended after four months, with an operational period of 15 months – whether the primary judge erred in ordering that the applicant serve actual time in custody
R v Demmery[2005] QCA 462, considered
R v MCT[2018] QCA 189, cited
R v Owen[2008] QCA 171, distinguished
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v Quinlan[2012] QCA 132, considered
R v Rogan[2021] QCA 269, considered
R v Sologinkin[2020] QCA 271, considered
R v Watson [1997] 1 Qd R 340; [1996] QCA 158, citedCOUNSEL:
J R Jones and N K Abdalla for the applicant (pro bono)
R G Reid for the respondentSOLICITORS:
Gilshenan & Luton for the applicant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: I agree with Brown J.
DALTON JA: I agree with the order proposed by Brown J and with her reasons.
BROWN J: Gurjit Singh, the applicant, was convicted of three counts of sexual assault on 4 December 2023. He pleaded guilty to all counts on what would have been the first day of his trial.
On the following day, the applicant was sentenced to five months imprisonment on count 1 and 10 months’ imprisonment on counts 2 and 3, all of which were to be served concurrently. The period of imprisonment was to be suspended after four months. The operational period of the order was 15 months. The sentencing Judge also ordered the applicant to pay $5,000 compensation to the complainant.
The applicant seeks leave to appeal against the sentence imposed on the ground that the sentence was manifestly excessive because it required the applicant to serve time in actual custody.
Circumstances of the offending
An agreed statement of facts was tendered by prosecuting counsel at the sentencing hearing and formed the basis of the sentencing (Statement of Facts).
The offending of the applicant was against a female, the complainant, who was 18 years of age at the time. The applicant was the complainant’s Uber driver. He was 35 years of age at the time of the offending.
On the night of the offending, the complainant had visited a Fortitude Valley nightclub, where she had been drinking alcohol with two girlfriends. At one point, the complainant fell over and was then asked to leave the night club. She described herself as being moderately drunk. Her girlfriends assisted her to order an Uber back to her university accommodation.
At 10.42 pm, the applicant picked the complainant up from Fortitude Valley. The complainant sat in the front seat of the vehicle and engaged in small talk with the applicant. At the applicant’s direction, the conversation became more intimate and involved some discussion about sex. At one stage during the journey, the applicant placed his hand on the complainant’s thigh and slid his hand up her leg. The complainant did not pull away because she was confused and frightened. The charges in relation to this conduct were discontinued by the Crown, as discussed below.
After pulling up outside the complainant’s accommodation, the applicant leant over and began fondling the complainant’s breasts outside her clothing. He then pulled the complainant’s head closer and attempted to kiss her. This conduct is the subject of count 1. At this time, according to the Statement of Facts, the applicant honestly believed the complainant was consenting, but the applicant accepted that belief was not reasonable in the circumstances.
The applicant subsequently slid his hand under the complainant’s dress and began rubbing her vagina on the outside of her underwear. He then pulled the complainant’s underwear to the side and rubbed her on the outside of her vagina. The applicant kept saying “Bella, sex” and the complainant repeatedly said “no” while trying to push him away. At this time, according to the Statement of Facts, the applicant no longer believed the complainant was consenting. This conduct is the subject of count 2.
The applicant then undid his belt and trousers, and forcibly placed the complainant’s hand on his erect penis and tried to get her to masturbate his penis. He held the complainant’s hand on his penis, even when she tried to pull away. During this offending, the applicant’s other hand was still touching the complainant’s vagina. The applicant said, “suck it, Bella sex, come on” and “move your legs apart more.” The complainant recalls that the applicant was being forceful, but not rough. This conduct is the subject of count 3.
The applicant asked to go to the complainant’s room to have sex to which she said “no”. The complainant was emotional and shaking. The applicant tried to move the complainant’s seat backwards and she said, “What are you doing?” The applicant then asked the complainant if she wanted to get out of the vehicle, and she replied that she did. The applicant helped the complainant out of the car and proposed that they go to her room, where they could have sex. The complainant said “no”. The applicant then proposed that the complainant get in the back of the Uber saying “it would be quick”. The complainant said “no”. The complainant fell onto her knees and the applicant helped her back up. They then went their separate ways.
The period of offending was approximately 10 minutes.
At approximately 10.58 pm, the complainant reported the offending to a campus security guard. The police arrived later that night and the complainant made a formal complaint. The applicant’s DNA was identified on the complainant’s underwear. He was later charged and released on bail.
Matters considered by the sentencing Judge
In considering the circumstances of the offending, the sentencing Judge noted that the Crown had discontinued the counts in relation to the applicant placing his hand on the complainant’s thigh and sliding it up her leg on the basis that the Crown accepted a submission that it could not negate the defence of an honest and reasonable but mistaken belief as to consent.
His Honour had regard to the victim impact statement of the complainant and the fact she stated that she had been adversely affected as a result of the offending and had suffered harm. According to the complainant, the harm was continuing up until the time she gave her statement.
In addition to the circumstances of the offending, the sentencing Judge considered the applicant’s antecedents and a number of mitigating factors relevant to the sentence, which included that:
(a)the applicant entered a timely plea of guilty, after the Crown had discontinued two counts of indecent assault following some negotiations. His Honour found that the early plea facilitated the administration of justice and saved the complainant from the additional trauma of having to give evidence;
(b)the applicant had no criminal history;
(c)the applicant expressed remorse and shame for his actions which his Honour accepted was genuine and had offered an apology for his actions;
(d)the applicant is at risk of being deported and held in immigration detention beyond the end of any sentence, and that any period of imprisonment may deprive him of the opportunity of residing in Australia;
(e)the applicant offered to pay compensation to the complainant;
(f)references were provided as to the applicant’s character, showing that he is a devoted husband and father, with a good work ethic, familial support and that he has previously undertaken charity work;
(g)the applicant was a trained lab technician in India and a hard worker, who had built a good life for his family in Australia; and
(h)the applicant had expressed his remorse in a letter written to the Court. His Honour found that the applicant had expressed insight into his offending, that he was unlikely to reoffend and now worked as a truck driver.
The sentencing judge considered the cases that were put before him by the Crown and defence.[1] He observed that the cases demonstrated that the sentencing discretion was very broad and that time in actual custody was not always required.
[1]Namely, R v Quinlan [2012] QCA 132; R v Bradford [2007] QCA 293; R v Rogan [2021] QCA 269; R v GBD [1996] QCA 158; and an unpublished decision of Martin SC DCJ in R v Miller on 5 August 2013.
His Honour considered the Crown’s submissions as to sentence that, had the trial proceeded, an overall sentence of two years suspended after seven months would have been appropriate. The Crown submitted that given the applicant’s plea of guilty, the head sentence should be reduced to less than 12 months and that the applicant should spend six months in custody before suspension of the period of imprisonment. In the Crown’s submission the circumstances of mitigation should be reflected by reducing the period of the head sentence, which appears to have, in part, taken into account the effect of the sentence on the applicant’s residency status if the sentence exceeded twelve months. The Crown additionally submitted it was open to his Honour to also order payment of compensation to the complainant.
His Honour then considered the defence submissions as to sentencing, including the submission that the sentence should be in the order of ten months, but no more than twelve months, and that the period of imprisonment should be wholly suspended, particularly relying on R v Rogan.[2] The defence submitted that an order to pay compensation to the complainant could be made in the amount of $5,000.
[2][2021] QCA 269. Although, counsel conceded a custodial sentence was within the range.
The sentencing Judge observed that the complainant was alone and vulnerable at the time of the offending. His Honour considered the actions of the applicant were a gross breach of trust given his position as an Uber driver, referring to the observations of Williams J in R v Watson (approved in R v Quinlan[3]) in relation to taxi drivers and the role that they play: [4]
“Taxi drivers play an important role in our community because they, apart from providing assistance to people who want transport, provide places of refuge, especially to women and especially to women at night-time. It is absolutely important in our community that all women, whatever age, have faith and comfort in the security and safety of the taxi driver with whom they travel alone at night.”
[3][2012] QCA 132 at [25].
[4][1996] QCA 158 at 3.
Having outlined the circumstances of offending, the impact upon the victim and the mitigating circumstances, the sentencing Judge proceeded to make the orders as to sentence in relation to the three counts:
“Balancing the relevant considerations and taking into account the entire criminality and reflecting the matters of mitigation in the reduction of the otherwise appropriate head sentence, which he found would have been 15 months, and suspending the period of imprisonment rather than an eligibility for parole.”
Contentions
There is no specific error alleged to have been committed by the learned sentencing Judge in sentencing.
It is submitted on behalf of the applicant that the sentence was manifestly excessive having regard to the cases of R v Rogan,[5] R v Demmery[6] and R v Sologinkin,[7] although the latter case was quite properly not contended to be relevant at the hearing. It is further submitted on behalf of the applicant that “the unusual commencement of the offending reduces the criminality of the offending and combining that with all the other circumstances which were in the applicant’s favour, the sentences were manifestly excessive”. Counsel on behalf of the applicant submits that the context of the offending was unusual, given the applicant held an honest belief as to consent in relation to count 1 and that he stopped his offending of his own volition.
[5][2021] QCA 269.
[6][2005] QCA 462.
[7][2020] QCA 271.
The Crown submits that comparable authorities do not suggest that the sentence was manifestly excessive. It contends that R v Quinlan[8] supports the sentence imposed because the offending conduct in that case was committed over a shorter period and was less invasive than in this case, even though the sentence in R v Quinlan was imposed after trial. The Crown contends that the significant breach of trust in that case justified the imposition of actual custody. It contends that the same applies in the present case where the conduct is said to have been more forceful and violating conduct, such that the complainant suffered harm as a consequence of the offending, unlike the victim in R v Quinlan.
[8][2012] QCA 132.
The Crown submitted that the nature of the offending called for general deterrence and community denunciation given the importance of public faith in taxi or Uber drivers. The sentence in the Crown’s submission reflected that need and the objective seriousness of the offending. The Crown submits that the applicant had the benefit of a significantly reduced head sentence and the benefit of suspension which sufficiently recognised the mitigatory features.
Consideration
In order to establish a sentence is manifestly excessive, it is not enough to establish that a sentence was different or even markedly different from sentences imposed in other matters. It must be demonstrated that the difference is such that the Court “is driven to conclude that there must have been some misapplication of principle”,[9] or that the sentence is “unreasonable or plainly unjust”.[10]
[9]R v Pham (2015) 256 CLR 550 at [28] per French CJ, Keane and Nettle JJ.
[10]R v MCT [2018] QCA 189 at [240] per Morrison JA.
While the authorities relied upon by the applicant’s counsel to support his contention that the sentence is manifestly excessive relate to sentences which differ from the sentence imposed in the present case, they do not demonstrate there was a misapplication of principle or that the sentence is unreasonable or plainly unjust. The cases relied upon involved less charges and generally less serious conduct. Significantly, these cases did not involve a breach of trust by the defendant.
In R v Rogan,[11] a sentence of 12 months imprisonment was imposed, which was suspended after two months for two years. There was only one charge of indecent assault. The sentence was reduced upon appeal so that it was suspended forthwith. The nature of the offending was comparable to the present, although it only ceased when another person entered the room. The applicant and the complainant in that case had known each other for three years, were older and both had been drinking, particularly in the case of the applicant. He had no previous criminal record. While his mitigating circumstances were similar to those in the present case, the offending in Rogan did not involve a breach of trust and the complainant was older. While the sentence was immediately suspended, the head sentence in that case was for a greater period than the present.
[11][2021] QCA 269.
In R v Demmery,[12] the applicant was sentenced to two years, suspended after six months. On appeal, the sentence was found to be excessive and was reduced to 12 months imprisonment, suspended after the applicant had served 25 days, with an operational period of 12 months. Both the applicant and complainant had both been drinking at a party. The complainant in that case was significantly younger than the applicant. The case again did not involve a breach of trust, although the complainant was younger and in a vulnerable situation, as the offending occurred while she was sleeping. The offending was objectively not quite as serious as the present, involving a single charge of indecent assault. It involved pulling the complainant’s underwear to the side and the applicant masturbating over her, but there was otherwise no evidence of physical contact. He stopped when interrupted by the complainant’s boyfriend. The applicant in that case had similar mitigating circumstances to the present case and had a minor prior criminal record. It does not appear that there was evidence of the impact upon the victim. At the hearing of the appeal, the Crown had submitted that an appropriate range for the head sentence was between 12 and 18 months. The Crown did not oppose the applicant’s request that the sentence be suspended after the 25 days served, because of the concern of returning someone of good prior history back to jail.
[12][2005] QCA 462.
In R v Sologinkin,[13] the offending was markedly less serious than in the present case and did not involve a breach of trust of a vulnerable young woman. As recognised by the applicant’s counsel, it provides little assistance to the present case.
[13][2020] QCA 271.
In oral submissions, counsel for the applicant sought to place reliance on R v Owen.[14] Although not discussed by the Court of Appeal, it was submitted that the case involved a breach of trust because the applicant had attended the complainant’s home to give her a massage, which had been arranged by the complainant’s husband. Following a trial, the applicant was found guilty of one of four charges only, namely, indecent assault on the basis that the applicant’s lips brushed the complainant’s pubic hair. He had also said he acted under a mistaken belief that she had “wanted him to keep going” after she said she was really enjoying the massage. He was sentenced to nine months imprisonment and was granted bail after spending 25 days in custody. The sentencing Judge did not consider that deterrence could be achieved without time being spent in custody and was therefore found to have unnecessarily fettered his sentencing discretion. That was not the case here. In resentencing the applicant, his sentence was suspended after 25 days custody. While R v Owen may be described as a breach of trust, the offending in the present case was more serious. Like the present case, the applicant’s references indicated he was of otherwise good character and reputation in the local community. There was also considerable publicity surrounding the applicant’s court appearances in R v Owen which had been found to have impacted upon the applicant and his family.
[14][2008] QCA 171.
The case of R v Quinlan[15] provides some support for the sentence imposed insofar as it involved a breach of trust, albeit involving the conviction after a trial. The offending was however much less serious than the present, involving a taxi driver squeezing the complainant’s breast “not hard and … not long”. A sentence of six months imprisonment suspended after seven weeks was imposed with an operational period of 12 months. The Court dismissed the application against sentence stating that:[16]
“This offence was not nearly as serious as many others of this nature which come before the courts, it was committed during a very short time, it was not submitted to have resulted in serious or long term consequences for the complainant, and there were significant factors justifying mitigation of the sentence. Even so, a sentence of imprisonment with seven weeks actual custody was within the sentencing discretion having regard to the appellant’s significant breach of trust towards a vulnerable passenger in his taxi, the requirement for a deterrent sentence, and the appellant’s inability to claim the benefit of remorse, co-operation with the authorities, or a plea of guilty.”
[15][2012] QCA 132.
[16]R v Quinlan [2012] QCA 132 at [30] per Fraser JA (with whom Fryberg and Martin JJ agreed).
While a lesser sentence than the present, R v Quinlan involved less serious offending than the present case. While the applicant in that case did not have the benefit of the mitigating circumstances that the applicant has in the present case, he was still regarded as a person of otherwise good character who committed an offence in a “moment of madness”.
As stated above, Counsel for the applicant sought to argue that the present case did not involve a breach of trust because of the fact he had held an honest belief as to the complainant’s consent. While counsel sought to put the argument as strongly as it could be put, it cannot be accepted. Despite the fact that the applicant may have held an honest belief, it was not reasonably held and it does not belie the fact that he took advantage of the complainant being his customer and a passenger in a vehicle he controlled. He directed the conversation towards matters of a sexual nature and then sought to act further physically, which he persisted in despite her saying “no”. It was a clear breach of trust in respect of a young woman in a vulnerable position.
The offending in the present case was objectively serious. The applicant submits that the circumstances of the present case are unusual because the applicant initially believed that the complainant was consenting to the conduct the subject of count 1. However, that was not the case in respect of the offending that was the subject of counts 2 and 3, where there was no suggestion of a belief that the complainant was consenting. The Statement of Facts show that the complainant was repeatedly saying “no” and pushing the applicant away in relation to the conduct the subject of counts 2 and 3. The offending was persistent, the defendant acted forcefully and he only desisted after the complainant had got out of the car and had said no to the applicant’s suggestion that he could help her to her room and they could have sex and then to the suggestion that the complainant get into the back of the Uber and “it would be quick”. The fact that the applicant held an honest belief that was not reasonably held in the circumstances can hardly be described as making the present offending unusual, let alone support a suggestion that the conduct was not in breach of trust.
The applicant was, as the learned sentencing Judge found, in a position of trust which was grossly breached by his conduct towards the complainant. The complainant was only 18 and he was 35, some 17 years older than her.
In the circumstances of this case, and having regard to the authorities, a sentence involving actual custody was open, notwithstanding the mitigating circumstances in his favour which suggested he was otherwise of good character, remorseful and lacking a prior criminal history.[17] While the authorities relied upon by the applicant’s counsel suggest the period of actual custody could have been for a lesser period, the period of four months was not outside the proper exercise of a discretion. The head sentence was markedly reduced from the sentence that may have been imposed had the matter gone to trial and the applicant had the benefit of a suspended sentence at less than half of the head sentence, both of which accounted for the mitigating circumstances. The differences between the sentence imposed in the present case and the authorities outlined above does not suggest a misapplication of principle, nor that the sentence is unjust or unreasonable.
[17]It is unnecessary to consider whether the actions of the applicant involved violence such that s 9(2A) of the Penalties and Sentences Act would operate and s 9(2)(a) would not apply. His Honour acknowledged that he was not compelled to order that the applicant serve time in actual custody and it was not contended below that the offending involved violence.
The sentence is not manifestly excessive and was open on the facts of the present case.
In the course of reviewing this matter, it became apparent that the endorsement on the indictment, which recorded an operational period of eighteen months, does not accord with the operational period his Honour had in fact stated, namely fifteen months. The verdict and judgment record accords with the endorsement. Neither party wished to make any submissions in that regard. The endorsement and the verdict and judgment record should be amended by the appropriate court officers to delete any references to an “eighteen month” operational period, and instead refer to a “fifteen month” operational period in accordance with the sentencing Judge’s original order.
The application for leave to appeal against sentence should be refused. I would direct that the Registrar of the Court of Appeal amend the District Court order sheet by deleting the words “The suspension is operational for 18 months” and inserting in lieu the words “The suspension is operational for 15 months”; and that this amendment be reflected in the verdict and judgment record issued consequent upon this appeal.
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