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Singh v The Queen

Singh v The Queen

Case [2019] NSWCCA 110 3 June 2019

Appeal

Miscarriage of Justice

Manifest Excess

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Singh v R [2019] NSWCCA 110
Hearing dates: 10 May 2019
Date of orders: 03 June 2019
Decision date: 03 June 2019
Before: Payne JA at [1]; Harrison J at [60]; R A Hulme J at [61]
Decision:
(1) Application for leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against conviction –aggravated break and enter dwelling-house and commit serious indictable offence – Crimes Act 1900 (NSW) s 112 – relationship of s 112 with burglary at common law – meaning of “break” – whether “constructive breaking” to knock at a door of a house with intent to rob its occupants and, upon the door being opened, to rush into the house

CRIME – appeals – appeal against conviction – miscarriage of justice – whether to allow withdrawal of guilty plea – where alleged that the agreed facts do not support the charge

CRIME – appeals – appeal against sentence – failure to take into account a relevant consideration –gambling disorder – substance use disorder
CRIME – appeals – appeal against sentence – manifest excess – whether guideline judgment in R v Henry should have been considered
Legislation Cited: Crimes Act 1900 (NSW), ss 97, 105A, 112
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases Cited: Aslan v R [2014] NSWCCA 114
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Ghamrawi v R (2017) 95 NSWLR 405; [2017] NSWCCA 195
Hughes v R [2018] NSWCCA 2
Johnston v R [2017] NSWCCA 53
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Jafari [2017] NSWCCA 152
R v Stanford (2007) 70 NSWLR 474; [2007] NSWCCA 370
Ritchie v R [2017] NSWCCA 21
Texts Cited: W Blackstone, Commentaries on the Laws of England (Clarendon Press, 1769)
TR Fitzwalter Butler and M Garsia (eds), Archbold: Pleading, Evidence and Practice in Criminal Cases 1822 (Sweet & Maxwell, 36th ed, 1966)
JW Cecil Turner (ed), Kenny’s Outlines of Criminal Law 1902 (Cambridge University Press, 19th ed, 1966)
W Hawkins, Pleas of the Crown 1716-1721 (Professional Books, 1980)
Category: Principal judgment
Parties: Amandeep Singh (Applicant)
Regina (Respondent)
Representation:
Counsel:
D A Marr (Applicant)
G Newton (Respondent)
Solicitors:
AC Law Group (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/00251291
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

6 June 2018

Before:

Herbert DCJ

File Number(s):

2017/00251291

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty to aggravated break and enter and commit a serious indictable offence, namely, robbery in company, under s 112(2) of the Crimes Act 1900 (NSW). He was sentenced to a non-parole period of 3 years commencing on 31 August 2017 and an additional term of 1 year and 6 months, being a total period of imprisonment of 4…

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 Singh v The Queen

Details

AGLC: Singh v The Queen [2019] NSWCCA 110
Case: [2019] NSWCCA 110
Decision Date: 03 June 2019

CaseChat Overview and Summary

The defendant in this case, Singh, was convicted of aggravated break and enter dwelling-house and commit serious indictable offence under section 112 of the Crimes Act 1900 (NSW). Singh appealed against his conviction and sentence, arguing that there was a miscarriage of justice, that the court failed to take into account relevant considerations, and that the sentence was manifestly excessive. The appeal was heard by the NSW Court of Criminal Appeal.

The primary legal issues before the court were whether the trial judge erred in accepting the defendant's guilty plea, whether the term "break" in section 112 of the Crimes Act 1900 (NSW) includes a "constructive breaking" to knock at a door of a house with intent to rob its occupants, and whether the court failed to take into account relevant considerations such as the defendant's gambling and substance use disorders. The court also had to consider whether the guideline judgment in R v Henry should have been considered in determining the sentence.

The Court of Criminal Appeal held that there was no miscarriage of justice in the trial judge accepting the defendant's guilty plea, as the agreed facts supported the charge. The court also held that the term "break" in section 112 of the Crimes Act 1900 (NSW) includes a "constructive breaking" to knock at a door of a house with intent to rob its occupants. The court found that the trial judge did not err in failing to take into account the defendant's gambling and substance use disorders, as these were not mitigating factors that could be taken into account under the sentencing legislation. Finally, the court held that the guideline judgment in R v Henry should not have been considered in determining the sentence, as it was not an analogous case.

The appeal was dismissed, and the original conviction and sentence were upheld.

Orders