Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Singh v R [2013] NSWCCA 186 Hearing dates: 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: M Phelps (Appellant) T Smith (Respondent) Solicitors: O'Brien Solicitors (Appellant) S Kavanagh - Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/323284 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-09-08 00:00:00 Before: Berman J File Number(s): 2009/323284 Judgment 1SIMPSON 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. 2Thereafter, 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. 3Notwithstanding 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. 4Sentencing 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 that the maximum penalty applicable to the offence to which the appellant pleaded guilty was imprisonment for 20 years. He sentenced the appellant to imprisonment for 18 months with a non-parole period of 9 months. 5The appellant does not speak English. He was at all times represented by counsel. An interpreter was present. The charge was not read in court, the appellant's counsel merely indicating that the appellant entered (or adhered to) the plea of guilty. Nobody noticed that the plea was entered to the more serious charge, contrary to the agreement between the appellant, through his legal representative, and the Crown. 6The appellant now appeals against the convictions. The Crown accepts that a miscarriage of justice has taken place, and that the plea to the s 111(3) charge entered does not reflect a true acknowledgement on the part of the appellant of his guilt of the specially aggravated offence. That conviction must be set aside. This Court has no power to substitute a conviction for the lesser offence. The matter must be remitted to the District Court. 7The convictions on the remaining two counts do not suffer from the same defect, but, the Crown accepts, correctly, are tainted by the error that infected the principal conviction. Those convictions, too, must be set aside and the charges remitted to the District Court for sentence in accordance with the agreement between the appellant and the Crown. 8I propose the following orders: (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. 9PRICE J: I agree with Simpson J. 10R A HULME J: I agree with Simpson J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2013