R v Singh

Case [2024] QCA 50

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 2023

DIVISION:

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, cited

COUNSEL:

J R Jones and N K Abdalla for the applicant (pro bono)
R G Reid for the respondent

SOLICITORS:

Gilshenan & Luton for the applicant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  I agree with Brown J.

  2. DALTON JA:  I agree with the order proposed by Brown J and with her reasons.

  3. 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.

  4. 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.

  5. 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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Details
AGLC
R v Singh [2024] QCA 50
Case
[2024] QCA 50
Decision Date

CaseChat Overview and Summary

The case of R v Singh involved an appeal by the applicant against his sentence, which was imposed following his guilty plea to three counts of sexual assault. The applicant, who was the complainant's Uber driver, had engaged in non-consensual sexual conduct with the complainant, who was intoxicated at the time. The applicant had no prior convictions and showed remorse. The District Court sentenced him to a period of imprisonment which was to be suspended after four months, with an operational period of 15 months. The applicant argued that the sentence was manifestly excessive.

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

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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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.