Singh v The Queen [2011] VSCA 317

**1 On 23 April 2010, the appellant pleaded guilty to three counts: one of abduction for the purposes of sexual penetration, one of intentionally causing injury and one of rape. A plea was heard on 5 August 2010. On 25 August 2010, her Honour Judge Harbison sentenced the appellant to four years' imprisonment on the count of abduction for the purposes of sexual penetration, one year's imprisonment on the count of intentionally causing injury and 11 years' imprisonment on the count of rape. Her Honour ordered two years of the four years of the sentence for abduction for the purposes of sexual penetration to be served cumulatively with the sentence for rape, making a total effective sentence of 13 years, and directed that the appellant serve a non-parole period of nine years.

2 The appellant appeals[1] against the sentence he received. The grounds of the appeal are:**

(1) The learned judge fell into sentencing error by ordering the 'significant degree of cumulation' as reflected in the sentence.

(2) The total effective sentence failed to give sufficient credit for the guilty plea.

(3) The total effective sentence failed to give sufficient regard to the appellant's personal circumstances and the manner in which he would serve any term of imprisonment.

(4) [This ground was not pursued at the hearing.]

(5) The sentence passed was in all the circumstances of the offence and the offender, manifestly excessive or, alternatively fell into error.

**3 The victim is a Sikh from the province of Punjab, in India. She was studying in Australia. On 18 June 2009, she was walking through Springvale at approximately 11.30 pm, talking on her mobile phone. She was on her way home from work. As she was walking, she observed a stranger standing next to a van, facing her direction. This man was the appellant, also a Sikh from Punjab. The victim continued to walk in the appellant's direction.

4 The appellant approached her and grabbed her from behind, putting his hand over her mouth. With his free hand, he grabbed her mobile phone and attempted to switch it off before throwing it away. The victim shouted and struggled with the appellant. He told her, in Punjabi, 'Stop shouting or else otherwise I will kill you with the knife'. The appellant dragged the victim into the van. She said to him 'If you want anything, take my purse and my mobile, just leave me'. The appellant got into the back of the van with the victim and shut the sliding door of the van. She fought with him, which caused him to get angry. He punched her, and grabbed her throat and squeezed it such that she was unable to breathe.

5 The appellant grabbed a rope from the van and tied the victim's hands together. The victim said to the appellant 'Leave me, I want to go home, why are you ruining my life to do all these things, I'm married'. The appellant got out of the van and left the victim in the rear of the van, naked from the waist down. He drove off at a fast pace for approximately four minutes, before stopping at an unknown location.

6 The appellant then returned to the back of the van. The victim was sitting, trying to cover the bottom half of her naked body. The appellant pushed her onto her back and pulled up her shirt and bra. He untied the ropes from her wrists. He said 'If you are married, how can I affect your life because you are already married'. He then raped her (penile/vaginal rape). He did not use a condom.

7 Having satisfied himself, the appellant then drove off a short distance, before stopping and opening the van. He directed the victim 'Take out everything from the van' and 'There's the station'. He then got back into the van and drove away.

8 As a result of the assault, the victim sustained injuries to her face, head and neck, including two black eyes, bruises, scratches and abrasions to her jaw, her chin, her back, right and left hands and right and left legs. The victim was a virgin at the time of the offence.**

**9 The appellant conceded that all stranger/abduction rapes are in a category more serious than those rapes where the offender is known to the victim. However, the appellant submitted that by definition, such rapes include 'a qualifying element of abduction'. It was then submitted that it is 'the abduction element of the offence that elevates this species of rape into the more serious category reflected in the starting point for sentence'. Finally, on this ground, it was submitted that 'to sentence the appellant to four years' imprisonment for the count of abduction for the purpose of sexual penetration, which offence was an immediate prelude to the rape in respect of which he was sentenced to 11 years' imprisonment subjects the applicant to an impermissible element and degree of double jeopardy in terms of twice punishing (vexing) for the same matter'.

10 We reject these submissions. The counts of rape and abduction for the purposes of sexual penetration were separate and distinct. The abduction charge contained actions including forcing the victim into the van and a journey to a more secluded place where the rape could be carried out. The abduction charge also contained the action of falsely imprisoning the victim, which was distinct from the elements of the crime of rape.

11 In R v King,[2] Redlich JA said:[3]**

Where a number of serious offences are committed in the course of a single incident, a separate count should generally be laid for each offence if such conduct is to be taken into account.[4] It is not required that the sentences imposed on each of those offences be made wholly concurrent. Whether the sentencing judge should make orders for cumulation will depend upon the circumstances of each case. The decision in R v O'Rourke[5] illustrates the point. But where a number of counts are laid in relation to offences committed in the course of a single incident, care is required both in fixing the sentences and in making any order for cumulation[6] to ensure that the accused is not subjected to double punishment.[7] The sentencing judge must separate the bases of punishment in situations where a number of offences are committed within the ambit of a single incident or enterprise.[8]

**12 Her Honour's reasons for sentence were, with respect, both careful and considered. They do not disclose any basis for concluding that, either in sentencing for the abduction count, or in ordering the cumulation her Honour ordered, the appellant was twice punished for the same matter.

13 Her Honour did not order any cumulation in relation to the count of intentionally causing injury. However, her Honour described the cumulation order she made in respect of the abduction charge as 'significant cumulation to reflect the trauma of this offending'. In our view, her Honour was correct both as to the length of the sentence for the abduction charge and as to the order for cumulation, having regard to the discrete and traumatic circumstances of the abduction charge.

15 In ground 2, the appellant makes complaint that insufficient 'credit' was given for his plea of guilty. In ground 3, the appellant makes complaint that insufficient regard was given to his 'personal circumstances and the manner in which he would serve any term of imprisonment'. In amplification of ground 3, the appellant submitted that the relevant personal circumstances were:

(a) the appellant would be serving a prison sentence in a foreign country in a condition of isolation where there would be no family to visit him and he would be alone and not able to speak the language of his prison guards;

(b) the appellant's loss of an opportunity to settle in Australia in light of 'his inevitable deportation at the end of his sentence'; and

(c) the appellant's inability to engage meaningfully in any programs whilst in prison.

16 As was said in DPP v Terrick,[9] the proposition that too much or too little weight was given to a particular sentencing factor is almost always untestable because quantitative significance is not assigned to individual considerations. Grounds 2 and 3 fall to be treated as particulars of the appellant's ground 5 where complaint is made that the sentence passed was in all the circumstances manifestly excessive. That said, the following points may be made about grounds 2 and 3:

(a) Her Honour was correct when she noted in the sentence[10] that the appellant's plea was entered after a contested committal at which many witnesses, including the victim, were called for cross-examination.

(b) Her Honour did take into account the fact that the appellant would be serving a prison sentence in a foreign country in a condition of isolation where there would be no family to visit him and he would be alone and not able to speak the language of his prison guards.[11]

(c) Her Honour did have regard to the appellant's loss of opportunity to settle in Australia following the serving of his sentence.[12]

(d) Her Honour did have regard to the appellant's limited ability to engage in programs in prison.[13]

**17 As to the appellant's complaint that the sentence passed was in all the circumstances manifestly excessive (ground 5), as has been repeatedly said by this Court, this ground will only succeed if it can be shown that the sentence imposed on the offender for the offence in the circumstances of the case was outside the range that was reasonably open. The stringency of that requirement is obvious.[14]

18 Her Honour's reasons for sentence disclose that her Honour gave careful consideration not only to the circumstances of the offending but also the circumstances of the offender, including the various matters relied upon in mitigation. The matters in mitigation include the matters to which we have already referred, the appellant's relative youth and the fact that the appellant had never been in any trouble with the authorities in the past. Notwithstanding the matters in mitigation, and giving full weight to them, we are not persuaded that the sentence passed by her Honour was manifestly excessive or outside the permissible range. It follows that grounds 2, 3 and 5 must fail.

19 Further, s 281 of the Criminal Procedure Act 2009 relevantly provides:**

(1) On an appeal under section 278, the Court of Appeal must allow the appeal if the appellant satisfies the court that-

(a) there is an error in the sentence first imposed; and

(b) a different sentence should be imposed.

(2) In any other case, the Court of Appeal must dismiss an appeal under section 278.

20 In our view, no different sentence should have been imposed in relation to the count of abduction for the purposes of sexual penetration, or in relation to the count of intentionally causing injury, or in relation to the count of rape, or in making the order for cumulation and in directing the non-parole period her Honour directed. It follows that, whatever substance there might have been in the appellant's grounds, s 281(2) of the Criminal Procedure Act mandates the dismissal of this appeal.[15]

[1] Pursuant to leave granted on 12 May 2011.

[2] [2007] VSCA 38.

[4] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383; R v Newman & Turnbull [1997] 1 VR 146.

[5] [1997] 1 VR 246. See also R v El-Kotob [2002] VSCA 109; (2002) 4 VR 546, 559-560 per Vincent JA.

[6] R v Langdon and Langdon [2004] VSCA 205; (2004) 11 VR 18, 39 [117]-[118]; R v Ly [2004] VSCA 45, [30].

[7] Pearce v The Queen (1998) 194 CLR 610, 623-4.

[8] R v Lacey [2006] VSCA 4 [21]-[26] per Vincent JA.

[9] [2009] VSCA 220; (2009) 24 VR 457, 459 [5].

[10] Reasons for sentence at paragraphs [52] and [53].

[11] Reasons for sentence at paragraphs [50], [51], [65] and [66].

[12] Reasons for sentence at paragraphs [49], [65] and [66].

[13] Reasons for sentence at paragraphs [50], [51], [65] and [66].

[14] R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306, 309 [14] and Guden v R [2010] VSCA 196, [5].

[15] Cf Ludeman v R [2010] VSCA 333.