R v Singh - [2005] QCA 403

SUPREME COURT OF QUEENSLAND

CITATION:

R v Singh [2005] QCA 403

PARTIES:

R
v
SINGH, Gregory Thomas
(applicant/appellant)

FILE NO/S:

CA No 179 of 2005
DC No 200 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

4 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

19 October 2005

JUDGES:

Jerrard and Keane JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal against sentence granted
2. Appeal allowed only to the extent of reducing the sentence on count 3 to 12 months

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – applicant convicted by a jury of fraud and attempted fraud – applicant sentenced to two years imprisonment for fraud with 18 months concurrent imprisonment for attempted fraud –amendments to corrective services legislation resulted in the applicant being eligible for both post-prison community based release and conditional release after serving approximately 12 months imprisonment – applicant’s release would depend on two separate administrative decisions – whether sentencing judge foresaw the possibility that post-prison community based release could be frustrated by a refusal of conditional release – whether this situation constituted an error of sentencing discretion – whether the sentence was manifestly excessive

Corrective Services Act 2000 (Qld), s 76(1), s 134(1)(a)(i),
s 135(2)(e)
Criminal Code 1899 (Qld), s 408C(1)

R v Blackhall-Cain [2000] QCA 380; CA No 178 of 2000, 15 September 2000, considered
R v Robinson; ex parte A-G (Qld) [2004] QCA 169; CA No 102 of 2004, 20 May 2004, considered

COUNSEL:

A J Rafter SC for the applicant/appellant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: On 5 July 2005 Mr Singh was convicted after a trial on one count of an offence of fraud in breach of s 408C(1)(a)(i) of the Criminal Code, and one count of attempted fraud in contravention of s 408C(1)(b). He was sentenced that day to two years imprisonment on the count of fraud and to 18 months concurrent imprisonment on the count of attempted fraud. He has applied for leave to appeal against those sentences, arguing that each should be suspended for an operational period of two years after he has served six months.

Mr Singh was 56 years old when sentenced, and aged between 51 and 53 when he offended. He had no prior criminal convictions and the learned sentencing judge described him having a good employment history. The learned judge took what the judge described as Mr Singh’s disadvantaged upbringing into account when imposing the sentence, and accepted that he had made a solid commitment to his family, to Aboriginal people, and to the wider general community, in his life to date. However, the judge…

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.

Continue reading R v Singh

Details

AGLC: R v Singh [2005] QCA 403
Case: [2005] QCA 403
Decision Date: 4 November 2005

CaseChat Overview and Summary

In the matter of R v Singh, the applicant appealed against his sentence for fraud and attempted fraud. The applicant was convicted by a jury and sentenced to two years imprisonment for fraud and 18 months concurrent imprisonment for attempted fraud. The sentencing judge did not foresee that amendments to corrective services legislation would result in the applicant being eligible for both post-prison community-based release and conditional release after serving approximately 12 months imprisonment. The applicant’s release would depend on two separate administrative decisions, which led to the argument that the sentencing judge did not foresee that the post-prison community-based release could be frustrated by a refusal of conditional release. The applicant contended that this situation constituted an error of sentencing discretion and that the sentence was manifestly excessive.

The court considered whether the sentencing judge foresaw the possibility that post-prison community-based release could be frustrated by a refusal of conditional release and whether this constituted an error of sentencing discretion. The court found that the sentencing judge did not foresee this situation, which constituted an error of sentencing discretion. The court also considered whether the sentence was manifestly excessive. The court found that the sentence was not manifestly excessive but acknowledged that the applicant’s release would depend on two separate administrative decisions, which was an unintended consequence of the sentencing. The court held that the sentence was not manifestly excessive, but the applicant was entitled to some relief because of the unintended consequence of the sentencing.

The court allowed the appeal only to the extent of reducing the sentence on count 3 to 12 months. The court held that the sentence on count 3 was manifestly excessive, given the applicant’s age, background, and the fact that he had already served approximately 12 months imprisonment. The court noted that the reduction in sentence would not undermine the overall deterrence value of the sentence or the community’s confidence in the administration of justice. The court also noted that the reduction in sentence would not result in the applicant being released earlier than he would have been under the original sentence. The court held that the sentence on count 3 was manifestly excessive and reduced it to 12 months.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed only to the extent of reducing the sentence on count 3 to 12 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Singh [2005] QCA 403
PARTIES:	R v SINGH, Gregory Thomas (applicant/appellant)
FILE NO/S:	CA No 179 of 2005 DC No 200 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	4 November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	19 October 2005
JUDGES:	Jerrard and Keane JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted 2. Appeal allowed only to the extent of reducing the sentence on count 3 to 12 months
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – applicant convicted by a jury of fraud and attempted fraud – applicant sentenced to two years imprisonment for fraud with 18 months concurrent imprisonment for attempted fraud –amendments to corrective services legislation resulted in the applicant being eligible for both post-prison community based release and conditional release after serving approximately 12 months imprisonment – applicant’s release would depend on two separate administrative decisions – whether sentencing judge foresaw the possibility that post-prison community based release could be frustrated by a refusal of conditional release – whether this situation constituted an error of sentencing discretion – whether the sentence was manifestly excessive Corrective Services Act 2000 (Qld), s 76(1), s 134(1)(a)(i), s 135(2)(e) Criminal Code 1899 (Qld), s 408C(1) R v Blackhall-Cain [2000] QCA 380; CA No 178 of 2000, 15 September 2000, considered R v Robinson; ex parte A-G (Qld) [2004] QCA 169; CA No 102 of 2004, 20 May 2004, considered
COUNSEL:	A J Rafter SC for the applicant/appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent