1. A written victim impact statement was provided to the Court for the magistrate to read to himself. The magistrate summarised that material as follows:

"Turning to the matter of victim impact I note what was put to me in that regard. The episode clearly had a significant impact on this complainant and has had continued to do so to date. Those effects are some predictably but, of course, sadly, those are precisely the sort of consequences which often flow from offending of this sort.

There was, of course, the initial distress and upset. Serious though that was but that was then followed by her continuing to suffer symptoms since that date including being emotionally libel (sic) generally. That she has also had episodes where she has self-harmed, something that she had not done since her adolescent years which has obviously caused her enormous distress and alarm.

The complainant has also, as she described it, lost faith or confidence in - in other people and as a direct result of this she has found herself simply unable to use an Uber or a taxi or indeed any form of public transport. An attempt to do so ended, frankly, in tears and that's meant that she's more - she is - needs to rely on - on family and friends to get about so it's had an isolating affect on her as well and that continues to be the case.

As I say these are the sorts of issues which often flow from offending such as this. She's enjoyed a number of counselling episodes but unfortunately those symptoms continue and I imagine might be likely to continue to varying degrees of seriousness from time to time over a prolonged period."

1. The applicant did not take issue with the victim impact statement at either the sentencing hearing or during the course of this review.

1. It was noted that the applicant had no prior convictions and was entitled to the utilitarian benefit of his plea of guilty. The prosecutor outlined a number of aspects of the offending which made it serious and called for a sentence with a focus on general deterrence, denunciation and protection of the public. Of particular note was that the assault was committed by a taxi driver, in public transport, late at night, against a vulnerable young woman who had been at a social function, drinking. It was submitted that women in such circumstances should be able to use public transport on their own late at night without fear of unwarranted advances and of being sexually assaulted. It was submitted that the applicant was persistent in circumstances where the complainant said she would prefer to get to know him first. The touching of the complainant's breast over her bra was not fleeting; it lasted for approximately five minutes. Prosecution submitted that this was an incredibly intimate act and committed for the applicant's own sexual gratification.
2. It was submitted that the complainant had told the applicant she had been drinking, and at one stage she said she had "had many drinks". From at least that point, it should have been apparent to the applicant that there was a level of intoxication.
3. Prosecution also submitted that the applicant's lack of prior convictions was of limited weight in the circumstances of this offence as this effectively facilitated his opportunity to assault the complainant. He would not have been able to obtain working with vulnerable people registration which allowed him to work as a taxi driver if he had relevant prior matters.

1. The following matters were put on behalf of the applicant during the plea in mitigation:
   • He was now 38 years old and had been married for eight years. There was one child of the relationship born in 2022. The applicant did not have any other family in Tasmania.
   • The applicant and his wife moved to Australia in 2018. The applicant's wife was then on a student visa. They moved to Launceston in 2020.
   • The applicant presently held a subclass 491 visa. He and his wife lived in rental accommodation. He was employed part-time as a food services assistant in an aged care facility. The applicant's wife had recently returned to part-time work and they shared their income and expenses.
   • The applicant had qualifications in engineering and had been employed in that industry in Nepal.
   • Since living in Australia he had worked for a cleaning services business, as a taxi driver and also in a supermarket before obtaining his current employment.
   • His employment as a taxi driver lasted for 12 months. He lost that employment following this offending as his working with vulnerable people registration was revoked.
   • The applicant had no criminal history.
   • The applicant accepted the complainant was a vulnerable person, that there was a power imbalance by virtue of his role as a male taxi driver, that he was in a position of trust and responsibility which he breached by committing this offence.
   • He accepted that his conversation with and behaviour towards the complainant breached community expectations of a taxi driver in those circumstances.
   • The applicant asserted that it was not apparent to him at the time that the complainant was so affected by alcohol that it was impacting her to the extent that she lacked capacity. He accepted, however, that he knew she had been drinking earlier that evening at a party. He also said it was not apparent to him that the complainant suffered from any learning disability or intellectual disability.
   • The applicant had pleaded guilty as soon as the new complaint had been laid.
2. Some aspects of the plea in mitigation require further elaboration due to the importance particular aspects of it played in the hearing before this Court. As to the applicant's visa, it was submitted that there was a risk it would be cancelled. It was described as a "working visa". During the sentencing hearing, the applicant's counsel confirmed the visa was subject to a character test but stated the following:

"It is not a situation where his visa will automatically be revoked as a result of this, but it is certainly going to bring it into question and that puts him at risk in having the visa cancelled."

1. It was submitted on behalf of the applicant that he had perceived that the complainant was interested in potentially seeing him on a social basis on a later date and potentially pursuing a relationship with him based on the conversations and her presenting her phone to him to add him on social media. The magistrate questioned whether that was a completely fair characterisation of the situation. He stated:

"I mean, it seemed to me that by the point that perhaps the phone was handed over it seems to me that it was pretty obvious from what the complainant had said and done and her actions she had been drinking. She struck me throughout that as being a pretty sort of good humoured but timid person and he was really persistent. So it seems to me what we are dealing with is a man in his late 30's with considerable life experience who was obviously stone cold sober and his massing very real pressure on this person who frankly seemed to me might be said to be was possibly too polite to know how to handle it. Would you cavil it any of that?"

"I would accept all of that, and certainty readily accept that Mr Singh ... perpetuated the entire conversation, he was the instigator, that was readily apparent from the CCTV footage. It was also apparent that, and we don't dispute it all, that, the complainant was clear that she did not want to do anything that night and that she...was interested in going home and that was it, however, it needs to be seen in the context that there was, if the complainant was truly being polite, in my submission she could have paid for the fare in cash and left. There was no reason for her to hand over her phone to [the applicant] and ask him to put in his Snapchat details. It also reached a point where, it was clear that she was not interested in anything and certainly, she made that clear and Mr Singh, at least on one occasion said, okay, I'll see you later then."

1. The applicant's counsel described him as misguided in his behaviour, acknowledging it was totally inappropriate. It was submitted the applicant was remorseful now as evidenced by his plea of guilty. He had also disclosed the offending to his wife which had caused him shame and embarrassment.

1. The magistrate commenced his sentencing comments by noting the applicant had pleaded guilty to one count of assault with indecent intent relating to his actions towards the complainant on 1 July 2023, which involved placing his hand down her top and touching her breast over her bra for some minutes.
2. After referring to the factual background as set out at [9] above, together with the victim impact statement, the magistrate noted the offending had a significant impact on the complainant and continued to do so as at the date of sentencing. The magistrate noted the submissions made in mitigation, the applicant's plea of guilty, lack of prior matters, his background in terms of his country of origin, the length of time he had spent in Australia, his family situation, his position and involvement in the community before concluding as follows:

"In summary it seems to me that this is a serious example of a breach of ... section 35(3). As I indicated the behaviour here was predatory, it was prolonged and has had significant consequences.

When I say prolonged I mean that the ... episode itself, that is the actual offence, was one which wasn't a fleeting touch or anything like that but rather the defendant maintaining his position with his hand down her top and over her breast for something like - or something close to five minutes. And, of course, when I say that it was prolonged, it needs to be seen as being prolonged against the entire trip where the defendant behaved in a way that .. I've outlined really from start to finish.

I also accept that the defendant abused his position as a taxi driver by dealing with the young woman in question as he did. She was alone. She had been drinking and she was entitled not to be offended against or harassed or pursued in that way ... in this trip. It seems to me therefore that he can properly be said to have been in something of a position of trust. It seems to me, therefore, that the submission that general deterrence is a significant factor in sentencing has real weight.

This offending was, frankly in my view, brazen in that it was something which was pursued from really the moment she got in the cab until she left. And it was also, of course, caught on CCTV - a camera - the camera being something that the defendant ... must necessarily have known was operative but he pressed on regardless.

As I say the behaviour making up the offence was part of a relentless pursuit of his sexual interest in the complainant. So it seems to me in all those circumstances that personal deterrence is also of relevance here. I accept that the defendant lost his job as a result of this and no doubt the institution of proceedings, being charged, coming to court and the like has itself been something of a salutary lesson already and that those have all underlined that this behaviour was utterly and entirely unacceptable.

At the end of the day I've reached the view that a term of imprisonment is, in my view, the only appropriate response to this offending.

Obviously assault with indecent intent is an offence at the lower end of the scale of ... the regime of sexual offences in Tasmania. However, it is also fair to say that it is an offence which covers a wide range of conduct from what might be described as quite minor offending through to more serious sorts of ... offending and, in my view, this, as I say, this represents ...a serious example of this offence and I note the presence of a number of aggravating factors as I've attempted to outline in these reasons.

As I say, the defendant has no prior matters and I accept that ... he's found himself a new job so ...he is someone who has shown himself to be industrious. He has a wife and child.

It might be hoped with all those factors that the defendant's prospects of reformation are therefore not to be ignored.

I also accept that the conviction that will be imposed today may well affect his visa or visa status. However, it seems to me that that is a matter of far lesser importance and of course it's not to be forgotten that it's the conduct which the defendant has pleaded guilty to which will doubtlessly be crucial in that regard and not the sentence that I impose.

However, I accept there may be some extra - a further extra period of punishment at play here. How that pans out is something, of course, that I can't predict but I accept that it's a ... factor.

In all this it's not to be forgotten that the defendant is, of course, a mature man and he did behave in an utterly deplorable fashion towards the complainant and that ... the actual offence itself was prolonged and preceded by highly inappropriate conduct and that that conduct even continued after the offence had been technically completed.

In all those circumstances the defendant is convicted. He is sentenced to five months imprisonment. Two months of that term of imprisonment is suspended for a period of two years from his release on condition that he commit no imprisonable offence during that two year period.

The - that sentence is, of course, also designed to be seen as a clear condemnation of this sort of conduct."

1. The magistrate also ordered that the applicant's name be placed on the register kept pursuant to the Community Correction (Offender Reporting) Act, concluding that "it was plainly a case where" such an order ought be made.

1. The applicant and the respondent referred to previous sentences imposed by this Court on charges of indecent assault in the course of their respective arguments. The decisions referred to by the applicant were:
   • EMR - 26 August 2021 - Blow CJ. 19 year old put his hand under the complainant's underwear and touched the outside of her vagina while sitting next to her in the backseat of a car. Complainant told him to stop. He removed his hand a short time later. Matter was reported to police six months later. EMR had no prior matters. He had drunk a lot on the night of the offence. He pleaded guilty. A community correction order was made for two years with a condition that he perform 84 hours of community service.
   • Mayar Majok - 25 September 2023 - Blow CJ. The complainant was the 28 year old's former partner. They had recently separated. He was staying the night at the complainant's house where she lived with family in another room. She woke during the course of the night and found the offender in her bed naked. He was touching her genitalia and anus under her underpants. She pushed the offender away and he left the room. After the complainant confronted him about his conduct the next morning, the offender voluntarily attended the police station and confessed to indecent assault. He pleaded guilty. He had no prior matters. At the time of sentencing he was living under the same roof as the complainant for the purposes of raising their child together. He was sentenced to 12 months' imprisonment, wholly suspended for three years. Community service and home detention were not available as the offender lived interstate. A three year Community Protection (Offender Reporting) order was made.
   • Turnbull - 5 July 2022 - Pearce J. 19 year old indecently assaulted his 18 year old friend. They were sharing a bed fully clothed. The complainant woke to find the offender rubbing her breasts with his hands under her bra for between one to three minutes. He then rubbed the top of her vagina for between five to ten minutes under her underpants. The complainant did not say or do anything to indicate consent. The next day after the complainant had left the offender's house, he messaged her indicating he hoped the touching had not made things weird and referred to himself as a dickhead. The complainant ceased contact with the offender. The matter was not reported for over four years. The offender was interviewed and admitted his conduct. He told police about the messages. He pleaded guilty. He had no prior convictions. A psychologist assessed him and concluded there were good reasons to consider the offending was an isolated incident and that he posed a low risk of sexual recidivism. A Community Protection (Offender Reporting) order was not made. He was convicted of two counts of indecent assault. A two year community corrections order was made with a condition he perform 105 hours of community service.
   • Stewart - 28 February 2025 - Cuthbertson J. 22 year old indecently assaulted his 24 year old female friend when sharing a bed with her fully clothed. On six occasions, he commenced indecently touching the complainant while she was asleep. He touched and kissed her breast under her clothing, rubbed her vagina over the top of her clothing, ground his penis into her upper thigh and buttocks area, touched her vagina and moved his penis in between her upper thighs. The complainant reported the matter the same day. The offender made some admissions. He pleaded guilty. He had no relevant prior convictions. A forensic psychologist assessed he was in the lowest risk category for future risk of committing sexual offences. He was convicted of six counts of indecent assault. He was sentenced to three months' imprisonment, wholly suspended for 12 months and subject to the special condition that he perform 75 hours of community service.
   • Gall-Strauss - 20 March 2024 - Blow CJ. 19 year old with a degree of intellectual impairment was found guilty of three indecent assaults of a female of a similar age. The offending occurred when they were sharing a bed fully clothed. The offender touched the complainant's breast under her bra and touched her vagina on two occasions. He had no prior convictions. He was convicted and sentenced to three months' wholly suspended imprisonment. A four year Community Protection (Offender Reporting) order was made.
   • O'Meara - 4 April 2023 - Brett J. 47 year old female found guilty of three counts of indecent assault of a younger female work colleague after a social gathering at the offender's home. When the offender's husband had gone to bed, she exposed the complainant's breasts by pulling the front of her dress down then sucked one of them. The offender then masturbated herself and as the complainant was organising herself to leave, the offender wiped her hand she had used to masturbate across the complainant's face. She then started to pull at the complainant's clothing, pulling the shorts down that she was wearing under her dress. The offender lost her employment, resigning in the face of inevitable termination. Her reputation in the business community had been negatively affected. She had no prior convictions. She was sentenced to six months' imprisonment wholly suspended for 18 months. A Community Protection (Offender Reporting) order was not made.

The respondent referred to the following decisions:

• Satpal Singh - 11 December 2024 - Martin AJ. 35 year old taxi driver was found guilty of indecent assault of a young female passenger. The offender had picked the complainant up at 4.30am and suggested she sit in the front passenger seat. He first touched and squeezed her knee and asked if she wanted a massage when she complained of having sore knees. He did not drive the complainant to her home as requested but took her to a beach some distance away. During the drive he asked probing questions about her personal life and refused her requests to pull over. When he eventually stopped he placed his hands all over the complainant, managing to get his hand under her shirt and bra and on her legs. The complainant pushed the offender away, but he managed to touch the complainant's breasts and mid-section. The complainant managed to get away and called police. In sentencing the offender, Martin AJ considered the offender's conduct was well-removed from the lowest end of the scale of seriousness given its context. He stated:

"People in our community trust taxi drivers to keep them safe, particularly women alone on a street in the early hours of the morning. You took advantage of your position as a taxi driver and you abused the trust placed in you. You used your position to entice a vulnerable young person into your taxi at 4.30am, and you did so with the possibility of a sexual encounter in mind. You immediately set about putting your sexual idea into action and you ignored the requests of the victim to stop and let her out. You ignored her offers to pay. The accumulative effect was that you put the victim through a harrowing experience, culminating in the indecent assault."

The offender held a temporary visa. He was convicted. He was sentenced to 12 months' imprisonment with nine months suspended. A two year Community Protection (Offender Reporting) order was made to operate from the date of his release from prison.

• DC - 28 July 2021 - Martin AJ. 78 year old, in poor health and suffering mild dementia, was found guilty of one count of indecent assault of a 19 year old complainant who was a close friend of the family. She was visiting the offender in hospital and sat down on the bed to talk to him. The offender put his arm around the complainant then put his hand up under her t-shirt and onto her breast over her bra. He told the complainant she had a nice pair. The offender had a good prior record. He was convicted and fined $3,000. The Court noted that if he had been a suitable candidate, some form of home detention or community service would probably have been ordered. His health issues rendered those options unsuitable.
• Baverstock - 3 December 2020 - Pearce J. 53 year old male found guilty of two counts of indecent assault of a 23 year old female who had autism spectrum disorder and an intellectual disability. The offender approached her in the public library and touched her breasts and vagina on the outside of her clothing. He then attended her supported accommodation that evening and touched her on the breasts and vagina outside her clothing again. He had a significant record of prior convictions for dishonesty offences, together with a range of prior matters relating to the indecent touching of younger females. He had previously received sentences of imprisonment for such offences. There had been a gap in his offending. He had a previous diagnosis of borderline personality disorder. He was sentenced to 12 months' imprisonment with six months suspended for a period of two years from release. A 12 month probation order was also made a condition of the suspended sentence. A seven year Community Protection (Offender Reporting) order was made to operate from the date of his release from prison.

1. The applicant highlighted that the offence of assault with indecent intent is a less serious offence than its indictable equivalent, indecent assault. The summary offence carries a maximum penalty of two years' imprisonment. This is to be contrasted with the maximum period of imprisonment provided for by the Criminal Code, namely 21 years. Although not referred to by the applicant, where the crime of indecent assault is tried summarily, the maximum period of imprisonment is three years for a first offence and five years for a second or subsequent offence: see s 13 of the Sentencing Act 1999.
2. The applicant submitted the offence itself "was objectively at the lower end of seriousness for indecent assault, even considering the vulnerabilities of the complainant" as there was no touching of the vagina or genitalia, the touching of the breast was over the clothing, there were no threats of violence to the complainant or any other threat to ensure the offending would not be reported and it was a single count.
3. The applicant submitted that the following features were mitigating:
   • The defendant pleaded guilty which spared the complainant from giving evidence;
   • The offence was un-premeditated;
   • The conviction and any sentence could affect his visa status;
   • The applicant had lost his registration to work with vulnerable people and lost his employment, both of which were extra curial penalties;
   • The applicant's visa would be cancelled which was an additional extra curial punishment. Even if the Court took the view the cancellation was merely a possibility, that prospect alone would cause the applicant anxiety which was a matter to be taken into account.
4. The applicant noted the magistrate did not obtain a pre-sentence report. Reference was made to the decision of Evans J in James v Turner [2006] TASSC 54; 15 Tas R 375. In that case, his Honour concluded a magistrate had erred in failing to make enquiries of an unrepresented defendant about matters relevant to sentence prior to imposing a custodial sentence. No opportunity had been given to the applicant to dissuade the magistrate from imposing an immediate period of imprisonment. Evans J noted at [8] that "if it was thought that a wholly suspended sentence of imprisonment lacked sufficient punitive impact, it may be that it could have been coupled with a community service order. The learned magistrate did not have the information he needed in order to assess these options." Evans J concluded the magistrate had erred in his approach to sentencing the applicant in that case as he failed to seek the information needed to undertake the necessary assessment.
5. The applicant argues that the decision not to wholly suspend the sentence rendered his sentence manifestly excessive. He argued that had the magistrate engaged in a thorough analysis of whether actual imprisonment was necessary, it would have necessitated an assessment of whether whole suspension or whole suspension combined with community service orders was appropriate in achieving deterrence and rehabilitation or reform. In this case, the magistrate did not seek a pre-sentence report or consider reform or rehabilitation, let alone suitability for community service. As a consequence, the magistrate deprived himself of information that would have furnished appropriate material to assist to determine the question of whether a whole suspension of the sentence was appropriate and whether it could achieve the applicant's reform.
6. The applicant also argued that it would have been appropriate for the magistrate to take into account the recording of the applicant's name on the Community Protection (Offender Reporting) Act register when fixing the sentence. Reference was made to the decision of Pearce J in Mulholland v Tasmania [2017] TASCCA 2; Tas R 313 at [26]. The applicant argued that the decision to wholly or partly suspend the sentence was arrived at independent of any consideration of that order.
7. The applicant also relied on an analysis of sentencing practices of courts in relation to charges of indecent assault and assault with indecent intent. The applicant submitted that when comparing his offence to the conduct the subject of those other matters, it was hard to reconcile the requirement to serve imprisonment. The following comparative features were identified:
   1. the applicant's conduct involved touching of the breast above clothing, compared to the skin on skin touching of the vagina, vulva or anus in cases of EMR, Majok, Turnbull, Stewart and Gaull-Strauss:
   2. the lack of prior relationship between the applicant and complainant compared with EMR, Majok, Turnbull, Stewart and Gaull-Strauss;
   3. the breach of trust involved in the cases of Majok, Turnbull and Stewart was far greater by reason of the relationships between those offenders and the victims;
   4. the complainant in this case was awake and aware of the offending compared to the circumstances that occurred in Turnbull; and
   5. the applicant pleaded guilty in contrast to Gaull-Strauss and O'Meara who were convicted at trial.
8. The applicant argued that given the comparative features, he received a markedly harsher sentence for less objectively or subjectively serious offending. It was argued that discrepancy can only have arisen as a result of some undefinable error in the exercise of the sentencing discretion which is to say the sentence was unreasonable or plainly unjust.

1. The respondent referred to the limitations on the value of sentencing statistics because of the variety of circumstances in which such offending can occur. The respondent submitted, however, that the applicant's offending was a serious example of the type of offence given the number of aggravating factors involved.
2. The respondent submitted that the magistrate was correct to characterise the offending as a serious example of this offence, warranting a term of imprisonment. The assault involved a taxi driver driving a young woman who was particularly vulnerable and affected by alcohol. It involved a breach of the standards expected of those engaged in such employment. The complainant was unknown to the applicant, yet he relentlessly pursued his sexual interest in her while he was driving her home and despite her polite refusal to engage in any sexual activity that night. The touching of her breast lasted for approximately five minutes and was not fleeting. Subsequently, the applicant continued to attempt to engage the complainant in sexual acts after the offending and after she left the taxi, which highlighted the seriousness of his conduct. The offending had a significant impact on the complainant. The respondent argues that a sentence reflecting general deterrence, denunciation and vindication of the complainant were all important sentencing factors.
3. While the respondent acknowledges that the imposition of the registration reporting obligations on the offender is relevant to sentence, the weight, if any, to be attributed to it depends on the nature and extent of any actual punitive effect on an offender in the circumstances of the case, judged in the context of the nature and gravity of the offence: Mulholland at 325-326. In this particular case, no material was put before the magistrate from which he could conclude that the making of such an order would have a punitive impact of any significance upon the applicant.
4. The respondent acknowledges there were some mitigating factors, including the applicant's prospects of reform. There was also an absence of some aggravating factors. The applicant's offending was not planned. No threats, force or weapons were used. These matters were, however, properly considered by the magistrate.
5. In all the circumstances, the respondent submitted that the sentence was not manifestly excessive.

1. The principles which apply to a motion to review a sentence on the ground of manifest excess are well-settled. They were recently summarised by Pearce J in Watson v Woodgate [2025] TASSC 26 at [3] as follows:

"To succeed on a ground that a sentence is manifestly excessive it is not enough to establish that the sentence may be regarded by some as too harsh. An appeal court may not substitute its own opinion for that of the magistrate merely because it may have exercised the sentencing discretion differently: Lowndes v The Queen [1999] HCA 29, 195 CLR 665 at [15]. This Court must be persuaded of error of the second type referred to in House v The King (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing court is, on the facts, unreasonable or plainly unjust, such that the appellate court may infer that in some way there has been a failure to properly exercise the sentencing discretion. Manifest excess or inadequacy must be plainly apparent. An applicant must show that the sentence is so obviously excessive that it is outside the proper limits of the broad sentencing discretion of a magistrate: Allen v Kerr [2009] TASSC 10, 19 Tas R 132, TGW v Tasmania [2017] TASCCA 10, 26 Tas R 106 at [33]."

1. The applicant does not argue that the magistrate erred in imposing a sentence of imprisonment or that the head sentence was too long. The argument is that the failure to suspend the whole of the sentence rendered it manifestly excessive.
2. The Sentencing Act 1999 provides no legislative guidance as to the exercise of the discretion to suspend a sentence of imprisonment in whole or in part, save that it mandates the imposition of a condition that the offender not commit another offence punishable by imprisonment during the period the order is in force: s 24(1). In Dinsdale v The Queen [2000] HCA 54, 202 CLR 321, Kirby J explained at 346 that "two distinct steps are involved". The first is a determination that a sentence of imprisonment, and not some lesser penalty, is warranted. The second is the determination of the portion to be suspended. In Gordon v State of Tasmania [2020] TASCCA 17, Porter AJ explained that consideration of an order suspending the execution of all or part of a terms of imprisonment:

"involves close attention to how the exercise of that discretion would contribute to the rehabilitation of the offender. However, the power to suspend is not confined by reference wholly, mainly or specially to the effect the suspension would have on the rehabilitation. Attention can be given to circumstances personal to the offender as well as objective features of the offence: Dinsdale v The Queen [2000] HCA 54, 202 CLR 321 per Gaudron and Gummow JJ at [26], per Kirby J at [86]-[87]."

1. In this case, the magistrate concluded that the offending warranted the imposition of a sentence of imprisonment, and not some lesser sentence, because the applicant abused his position as a taxi driver to engage in the predatory, prolonged and brazen indecent touching of a vulnerable young female. He considered personal and general deterrence warranted the imposition of such a sentence.
2. In considering whether and how much of the sentence to suspend, the magistrate noted the applicant had no priors, a new job, his family circumstances, his prospects of rehabilitation and the effect of a conviction on his visa. In imposing a sentence which required some to be served, the magistrate explained it was designed to denounce the conduct.
3. In my view, the applicant has failed to demonstrate that the sentence imposed was unreasonable or plainly unjust. The magistrate's characterisation of the applicant's offending was entirely justified. It represented a serious example of the offence of assault with indecent intent. The maximum period of imprisonment that could have been imposed was two years. The sentence imposed fell well short of that maximum. The comparative sentences relied upon by the applicant were of little assistance. The range of circumstances in which such an offence and its analogue can occur varies considerably. There was much about the circumstances of the applicant's offending which distinguished it from the comparative cases he relied upon, not least the context in which it occurred.
4. The abuse of the applicant's position as a taxi driver, combined with the persistent and predatory way in which he sought to engage a vulnerable complainant in sexual activity, warranted a sentence which emphasised general deterrence and denunciation of the applicant's conduct. As Crawford J (as he then was) explained in Hyland v R [1996] TASSC 144 at 39:

"The community is entitled to expect that taxi drivers can be trusted. That particularly applies to the carriage of female passengers at night. The applicant's privileged position as a licensed taxi driver carried with it a responsibility to conform with the trust the deceased and other passengers reposed in him."

See also Cox CJ at [21] and Zeeman J at [69] in that same decision.

1. The mitigating factors relied upon by the applicant were, of course, relevant to sentence. The weight to be given to them in the sentencing exercise were matters for the magistrate to determine consistent with the relevant principles to be applied. The applicant's argument is that if all the factors had been appropriately considered, the only appropriate sentence was one that did not require any of it to be served immediately. A partial answer to this argument lies in a consideration of some of the particular factors relied upon by the applicant to demonstrate that they did not attract the sort of weight that demanded such an outcome.
2. The applicant emphasised the extra curial punishments he suffered as a consequence of his offending as justifying the imposition of a penalty falling short of actual imprisonment. In this respect, he relied on his loss of working with vulnerable people registration and employment as a taxi driver, together with the potential impact on his visa status. In Mulholland v Tasmania, Pearce J at [27] (Tennent and Brett JJ agreeing) noted that:

"A loss or detriment suffered by an offender as a result of having committed a crime may, in some circumstances, properly be taken into account in determining sentence. .... An example may be injury suffered by an offender in committing a crime, or inflicted on the offender as retribution or revenge, or some type of financial consequence: R v Barci (1994) 76 A Crim R 103; R v Daetz; R v Wilson [2003] NSWCCA 216, 139 A Crim R 398; R v R L P [2009] VSCA 271, 213 A Crim R 461; R v O'Connor [2014] NSWCCA 53, 239 A Crim R 487. However, the weight to be attributed to extra-curial punishment depends on the circumstances of the case, and in some cases it may attract little or no weight: R v Daetz; R v Wilson per James J, with whom Tobias JA and Hulme J agreed, at 411 [62]."

1. The applicant's loss of employment as a taxi driver and of his working with vulnerable people registration were matters which, in my view, were not required to be ascribed significant weight. In R v Talia [2009] VSCA 260, the Victorian Court of Appeal considered the extent to which a real estate agent's loss of occupation and mandatory disqualification from working in that occupation for at least 10 years, was mitigatory in the context of an offence committed in the course of employment. While the Court of Appeal accepted that the sentencing judge was entitled to afford these matters some weight, he was not bound to do so. With respect to the issue of disqualification, the Court of Appeal considered at [28] there was a distinction between "a disqualification resulting from criminal conduct in the course of the employment from which the person is disqualified and criminal conduct remote from that employment but having that consequence." In this case, the applicant lost his employment which required working with vulnerable people registration, together with his right to work in any other field requiring such registration as a result of criminal conduct in the course of that very employment. It could not be said that the criminal conduct was remote from that consequence. His conduct breached the trust placed in him in his occupation and as a holder of such registration. I do not consider the loss of employment or his right to work in areas requiring working with vulnerable people registration to be a disproportionate outcome of his offending which would attract significant weight.
2. The potential impact on the applicant's visa status is one that was acknowledged by the magistrate. In those jurisdictions where courts consider reduced migration prospects as mitigatory, it is usually necessary to establish the nature of the risk and the hardship it would cause: see discussion in Bagaric et al, Sentencing in Australia, 11th ed (2025) at [500.19000]. The information provided to the magistrate fell short of identifying the likely effect of any sentence upon the applicant's visa status.
3. The order made pursuant to the Community Protection (Offender Reporting) Act was not a factor that the magistrate was required to accord particular weight in the circumstances. As Pearce J concluded in Mulholland at [31], the weight to be attributed to the imposition of such obligations "depends on the nature and extent of any actual punitive effect on an offender in the circumstances of each case, judged in the context of the nature and gravity of the offence". In this instance, there was no information before the magistrate to suggest that it would have a punitive effect of any significance.
4. The applicant's complaint that the magistrate did not obtain a pre-sentence report was not asserted to constitute a specific error. It is difficult to conceptualise how it is was relevant to the argument that the sentence imposed was unreasonable or plainly unjust in light of all the circumstances. This was not a case of the kind Evans J was dealing with in James v Turner. The applicant was represented in the sentencing hearing. The magistrate had the benefit of both written and oral submissions in mitigation. It is not a case where it can properly be said that the magistrate was deprived of relevant information. No request was made of the magistrate to obtain a report. The magistrate acknowledged the applicant's prospects of reform. He had before him sufficient information to assess the available sentencing options.
5. In my view, the sentence imposed by the magistrate is unimpeachable. It balanced the objectives of punishment, denunciation, general and specific deterrence and vindication of the complainant with the applicant's prospects of reform, reflected in the partial suspension of the sentence. The conduct warranted a condign response.
6. This ground is not made out.

Specific error - partly suspended sentence v wholly suspended sentence

1. The applicant largely relied on his arguments in support of the complaint of manifest excess when addressing this ground. He argued that the exercise of the discretion at the second stage of the two distinct steps identified by Kirby J in Dinsdale miscarried, as a careful analysis of comparative cases in combination with the circumstances of the case were such that the magistrate "could not have concluded that a partially suspended sentence was the only appropriate sentencing order".
2. The applicant takes no issue with the magistrate's conclusion that the applicant's offence was one that warranted a sentence of imprisonment. Given that the magistrate had decided that reform of the applicant was possible or achievable, he argued attention needed to be directed to sentencing options to achieve that aim. Instead, the magistrate proceeded to impose a custodial sentence which was only partly suspended without engaging in an analysis of why a whole suspension was inappropriate. The applicant also complains that the magistrate had failed to signal to counsel that he was minded to impose actual time in custody. The applicant's ultimate submission is that a wholly suspended sentence, including community service, was the proper disposition given all of the factors relied upon.

1. It is difficult to comprehend the nature of the specific error alleged here. To the extent it is based on the result, it is no different from a complaint that the sentence was manifestly excessive. I have already explained why, in my view, the sentence was not unreasonable or plainly unjust. Those reasons are also sufficient to explain why the assertion that the proper disposition was a wholly suspended sentence including in combination with community service is untenable.
2. To the extent this ground suggests the magistrate did not approach the task in two stages described by Kirby J, it is also untenable. The magistrate did not elide the two stages of the exercise of the discretion. He first determined that a term of imprisonment was the only appropriate response to the offending. This is a clear expression of his conclusion that "a sentence of imprisonment, and not some lesser sentence, is called for". The magistrate then determined whether the term of imprisonment should be suspended, how much of it should be suspended and for how long. He did so after canvassing the matters relevant to the exercise of the sentencing discretion, including the nature of the offending, the applicant's personal circumstances, his prospects of reformation and the potential visa implications. His conclusion that the applicant was required to serve three months of that sentence was preceded by the observation that the applicant's conduct was utterly deplorable, prolonged, and commenced with highly inappropriate conduct which continued after the offence had been technically completed. It was followed by the statement that the sentence was designed to be seen as a clear condemnation of this sort of conduct. The magistrate's approach, in my view, was in accordance with that outlined in Dinsdale. And contrary to the applicant's assertion, the magistrate did analyse the relevant circumstances before concluding that the appropriate sentence was one that included a period of imprisonment to be served immediately.
3. No specific error has been identified. This ground is also not made out.
4. For these reasons, the motion to review is dismissed.