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Singh v The Queen [2021] WASCA 135

Offender was sentenced following a plea of guilty to 1 count of using a carriage service in a way that reasonable persons would regard as being menacing, harassing or offensive and which involved the transmission, publication and distribution of private sexual material, contrary to s 474.17A(1) of the Commonwealth Criminal Code. Original sentence imposed 20 months imprisonment, to be released on recognizance after 10 months. Offender appealed on the basis that the sentencing judge failed to take into account certain matters, including emails sent by the victim, that the offender’s actions were provoked by the victim, the nature of the content sent to the victim’s brother and father and the effect immediate imprisonment would have on the offender’s family responsibilities and debt on his business. Offender also alleged a number of miscarriages of justice.

Nature and Circumstances: Victim had sent to the offender’s wife a screenshot of the private sexual material as the offender’s wife and father did not believe the victim when they were told of the offender’s conduct. In this context, the victim’s conduct was understandable. The victim’s conduct did not ‘provoke’ or reduce the criminality of the offender’s actions. Material that the offender complained was not taken into account by the sentencing judge was not identified with any precision and was not put before the court. Sentencing judge’s remarks that the offender transmitted private sexual material to the victim’s family in the form of videos was not a material error as it was not capable of affecting the sentence imposed. The content of the transmitted material was, in substance, the same, regardless of its form.

Family and Dependents: It is an inevitable consequence of imprisonment that family members who are close to an offender and may be economically dependent upon them will suffer as a result of the offender’s incarceration. Ordinarily, such matters are not mitigatory. There was nothing to indicate the offender’s family and business responsibilities fell into the exceptional category of cases where such factors may be considered mitigatory.

Leave to appeal refused. Appeal dismissed.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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