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Court of Criminal Appeal 12 May 2021

Singh v R

[2021] NSWCCA 96

Sexual offencesAssault & violenceFirearms & weapons
CRIME SENTENCING SERIOUS SEXUAL ASSAULTS VICTIM DETAINED AT KNIFE POINT STABBED REPEATEDLY SEXUALLY ASSAULTED

Citation: Singh v R [2021] NSWCCA 96
Court: Court of Criminal Appeal, NSW
Date: 12 May 2021
Judges: Bathurst CJ at [1]; Beech-Jones J at [2]; Wilson J at [86]

Background

The applicant was sentenced in the District Court on 5 July 2019 for five serious offences arising from a single incident at a shared home. He detained his female housemate at knifepoint, stabbed her, and subjected her to repeated aggravated sexual assaults. The victim was 22 years old at the time; the applicant was 39. The offending was described in agreed facts before the sentencing judge.

The sentencing judge imposed an aggregate term of 15 years' imprisonment with a non-parole period of 9 years. Several of the substantive counts carried associated offences listed on Form 1 notices, a procedural mechanism under the Crimes (Sentencing Procedure) Act 1999 that allows additional offences to be taken into account on sentence without separate conviction.

The applicant sought leave to appeal against the aggregate sentence. The Crown conceded that the sentencing judge had made at least one error, specifically in the treatment of the Form 1 offences. Notwithstanding that concession, the Crown opposed any reduction in sentence.

  • Whether the sentencing judge erred in the treatment of Form 1 offences when assessing the objective seriousness of the substantive counts
  • Whether any identified error, once established, required the Court of Criminal Appeal to undertake a resentencing exercise
  • Whether, on resentencing, a lesser sentence than that imposed at first instance was warranted in law

Decision

The Court granted leave to appeal and accepted the Crown's concession that the sentencing judge had erred in the treatment of the Form 1 offences. Form 1 offences are relevant to punishment generally, but they do not bear on the assessment of the objective seriousness of the substantive counts to which they are attached. The sentencing judge conflated these two distinct considerations. Beech-Jones J noted that, despite this error, the sentencing judge had undertaken a difficult task with considerable care.

Because an error of the kind identified in House v R (1936) was established, the Court was required to resentence the applicant rather than simply vary the original sentence. This follows from the principle in Kentwell v The Queen (2014): once a House v R error is found, the appellate court must conduct the sentencing exercise afresh.

On resentencing, the Court concluded that a greater indicative sentence was warranted for each of counts 3, 4, and 5 compared to those imposed at first instance, with no lesser indicative sentence warranted for counts 1 and 2. Applying the principles from Cahyadi v R and Nguyen v R concerning the construction of aggregate sentences, the Court was satisfied that the aggregate sentence warranted in law exceeded the aggregate sentence under appeal. It followed that no lesser sentence was warranted, and the appeal was dismissed.

The Court also briefly addressed a procedural question about whether, when applying s 6(3) of the Criminal Appeal Act 1912 to an aggregate sentence, it is necessary to specify the precise indicative sentences that would have been warranted before concluding that no lesser aggregate sentence is appropriate. Beech-Jones J held that no such specification was required in the circumstances of this case, finding it sufficient to state that greater indicative sentences were warranted for the relevant counts.

Orders Made

  • Leave to appeal against sentence granted.
  • The appeal dismissed.

Key Takeaways

  • Form 1 offences are a relevant sentencing consideration, but they do not bear on the objective seriousness of the substantive counts to which they are attached. Using them to elevate the assessed seriousness of a substantive count constitutes a House v R error.
  • Once a House v R error is established on a sentence appeal, the Court of Criminal Appeal must resentence the offender rather than simply adjust the original sentence, following the approach confirmed in Kentwell v The Queen (2014) 252 CLR 601.
  • In dismissing the appeal, the Court confirmed that an error favouring an applicant does not automatically lead to a reduction in sentence. Where the warranted sentence on resentencing exceeds the sentence under appeal, s 6(3) of the Criminal Appeal Act 1912 requires the appeal to be dismissed.
  • When considering whether to apply s 6(3) to an aggregate sentence, the Court held it is not always necessary to specify precise indicative sentences for each count before concluding that no lesser aggregate sentence is warranted in law. It is sufficient to identify the direction in which corrections would move the indicative sentences.
  • The applicant's mental illness at the time of offending was part of the sentencing matrix, but the gravity of the offending, involving detention at knifepoint, stabbing, and repeated aggravated sexual assault, meant the aggregate sentence of 15 years with a 9-year non-parole period was not excessive.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32(1), 53A(2), 54B(2)
- Crimes Act 1900 (NSW), ss 35(4), 61J, 61L, 86(2), 578A(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Mental Health Act 2007 (NSW)

Cases
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Hordern v R [2019] NSWCCA 138
- House v R (1936) 55 CLR 499
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Nguyen v R (2016) 256 CLR 656; [2016] HCA 17
- R v O'Donoghue (1988) 34 A Crim R 397
- RO v R [2019] NSWCCA 183
- Stephens v R [2010] NSWCCA 93