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…
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- R v Singh [2024] QCA 50
- Case
- [2024] QCA 50
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CaseChat Overview and Summary
The primary legal issue in this appeal was whether the primary judge erred in ordering that the applicant serve actual time in custody. The court needed to determine if the sentence imposed was manifestly excessive or inadequate, considering the seriousness of the offending, the need for general deterrence and community denunciation, and the applicant's personal circumstances.
The court found that the sentence imposed by the primary judge was not manifestly excessive. The court noted that the cases relied upon by the applicant did not involve a breach of trust, a significant factor in the present case. The court also considered that the Crown had submitted that an appropriate range for the head sentence was between 12 and 18 months. The court concluded that the sentence, including the suspension after 25 days served, sufficiently recognised the mitigating features and the need for general deterrence and community denunciation. Therefore, the appeal against sentence was dismissed.
The court made the following orders: the application for leave to appeal against sentence was refused, and the Registrar of the Court of Appeal was directed to amend the District Court order sheet to reflect that the suspension is operational for 15 months, not 18 months.
Orders
Orders of the court
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.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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.