Singh v The Queen - [2013] NSWCCA 186

Court of Criminal Appeal

New South Wales

Case Title: Singh v R

Medium Neutral Citation: [2013] NSWCCA 186

Hearing Date(s): 2 August 2013

Decision Date: 02 August 2013

Before: Simpson J at [1]; Price J at [9]; R A Hulme J at [10]

Decision:
(i) Grant leave to appeal;
(ii) Appeal against conviction on each count upheld;
(iii) Each conviction quashed;
(iv) Each count remitted to the District Court to be dealt with according to law.

Catchwords: CRIMINAL LAW - appeal - conviction - Crown concession - appellant mistakenly convicted and sentenced for offence pursuant to s 111(3) of the Crimes Act 1900 contrary to plea agreement made between appellant and Crown - appellant ought to have been convicted and sentenced under s 111(2) of the Crimes Act 1900 - plea to s 111(3) charge not a true acknowledgement of appellant's guilt - conviction set aside - convictions on remaining counts also set aside as being tainted by error - matter remitted to District Court to be dealt with according to law

Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986

Category: Principal judgment

Parties: Gurwinder Singh (Appellant)
Regina (Respondent)

Representation

- Counsel: Counsel:
M Phelps (Appellant)
T Smith (Respondent)

- Solicitors: Solicitors:
O'Brien Solicitors (Appellant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/323284

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Berman J

- Date of Decision: 08 September 2011

- Court File Number(s): 2009/323284

JUDGMENT

SIMPSON J: On 21 December 2009, with four other men, the appellant was charged, pursuant to s 111(3) of the Crimes Act 1900, with entering a dwelling house with intent to commit a serious indictable offence in circumstances of special aggravation. Such an offence exposed him to a penalty of imprisonment for 20 years. The offence was allegedly committed on 13 December 2009.
Thereafter, discussions took place between the appellant's legal representatives and legal representatives of the Crown, as a result of which the appellant agreed to enter a plea of guilty to a lesser offence, under s 111(2), of entering a dwelling house with intent to commit a serious indictable offence in circumstances of aggravation (not special aggravation). The Crown accepted that plea. Such an offence exposed the appellant to a penalty of imprisonment for 14 years. Pursuant to s 166 of the Criminal Procedure Act 1986 two further charges were laid against the appellant, of assault occasioning actual bodily harm (Crimes Act, s 59), and common assault (Crimes Act, s 61). The appellant also agreed to plead guilty to each of these charges.
Notwithstanding the agreement of the Crown to accept the plea to the charge under s 111(2), by mistake he was committed to the District Court for sentence for the more serious s 111(3) offence.
Sentencing proceedings took place in the District Court in Sydney on 25 August 2011. On each count, the appellant was formally convicted and sentenced. The sentencing judge selected the sentence on the basis…

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.

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Details

Case: [2013] NSWCCA 186
Decision Date: 02 August 2013

CaseChat Overview and Summary

The appellant, Singh, was convicted and sentenced for an offence under section 111(3) of the Crimes Act 1900. He appealed against the conviction and sentence, arguing that he had been mistakenly convicted and sentenced contrary to a plea agreement made with the Crown. Singh contended that he ought to have been convicted and sentenced under section 111(2) of the Crimes Act 1900. The Crown conceded that Singh's conviction and sentence under section 111(3) was a mistake and that the plea agreement had not been properly followed.

The legal issues before the court were whether the appellant's conviction and sentence under section 111(3) of the Crimes Act 1900 was a mistake, and if so, whether the plea agreement was not a true acknowledgement of the appellant's guilt. The court had to determine whether Singh's conviction and sentence should be set aside, and if so, whether the convictions on the remaining counts were tainted by the error. The court also had to decide what orders should be made in relation to the appeal.

The court found that Singh's conviction and sentence under section 111(3) of the Crimes Act 1900 was a mistake, and that the plea agreement had not been properly followed. The court held that Singh's plea to the s 111(3) charge was not a true acknowledgement of his guilt. The court set aside Singh's conviction and sentence under section 111(3) of the Crimes Act 1900, and also set aside the convictions on the remaining counts as being tainted by the error. The court remitted the matter to the District Court to be dealt with according to law. The Crown was ordered to pay Singh's costs of the appeal.

Orders