BETWEEN KISHOR CHANDRA SINGH Appellant AND THE KING Respondent

[2024] NZHC 966

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2023-441-00019

[2024] NZHC 966

BETWEEN

KISHOR CHANDRA SINGH

Appellant

AND

THE KING

Respondent

Hearing:

13 February 2024

Appearances:

E J Forster for Appellant

C R Stuart and M Mitchell for Respondent

Judgment:

29 April 2024

JUDGMENT OF CULL J

[1]    Mr Singh appeals the decision of the District Court, sentencing him to six and a half years’ imprisonment with a minimum period of imprisonment (MPI) of one year and nine months on conviction for possession of firearms, ammunition and drugs for supply, receiving, and attempting to pervert the course of justice. 1

Background to the offending

[2]Mr Singh pleaded guilty to nine offences:

(a)possession of 21 Alfa Carbine rifles  between  25  March  2022  and 28 May 2022 (representative);2

(b)possession of ammunition between 5 April 2022 and 28 May 2022 (representative);3

1      R v Singh [2023] NZDC 9359.

2      Arms Act 1983, s 45(1)(b). The maximum penalty is four years’ imprisonment.

3      Section 45(1)(b). The maximum penalty is four years’ imprisonment.

SINGH v R [2024] NZHC 966 [29 April 2024]

(c)possession    of    three    sawn-off    firearms    on    10   August    2022 (representative);4

(d)possession of ammunition on 10 August 2022 (representative);5

(e)possession of methamphetamine for supply on  10  August  2022;6  [7.3 grams]

(f)possession of cannabis plant for supply on 10 August 2022;7 [9 kgs]

(g)cultivation of cannabis plant between 28 June 2022 and 10 August 2022 (representative);8

(h)receiving a stolen Bobcat and  trailer  between  4 August  2022  and 10 August 2022;9 and

(i)attempting to pervert the course of justice on 19 July 2022.10

[3]    The charges arose out of a police investigation involving electronic monitoring of unlawful firearms dealing in Hawke’s Bay. The unlawful firearms are Alfa Carbine rifles, which can be reduced to pistol-size, making them easier to use and conceal by persons without a firearms licence.

[4]    The police investigation revealed that Mr Singh arranged for five people, including his daughter’s partner, to purchase firearms and ammunition for him from Gun City in Napier on 10 separate occasions. Mr Singh paid the purchasers $500 for each firearm they bought, in addition to the cost of the firearms and ammunition. The cost of the rifles and ammunition totalled $47,390.96. Mr Singh then cut down the rifles to pistol-size and sold them with the ammunition to unlicensed gang associates.

[5]    The police identified text messages between Mr Singh and his daughter’s partner on 19 July 2022 warning that the police were asking the purchasing agents

4      Section 45(1)(b).  The maximum penalty is four years’ imprisonment.

5      Section 45(1)(b). The maximum penalty is four years’ imprisonment.

6      Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a). The maximum penalty is life imprisonment.

7      Section 6(1)(f) and (2)(c). The maximum penalty is eight years’ imprisonment.

8      Section 9(1). The maximum penalty is seven years’ imprisonment.

9      Crimes Act 1961, ss 246(1) and 247(a). The maximum penalty is seven years’ imprisonment.

10     Section 117(e). The maximum penalty is seven years’ imprisonment.

about the firearms sales. Mr Singh sent a cover story to the partner in their text exchange.

[6]    On 10 August 2022, the police searched Mr Singh’s home address and a rented workshop, both in Hastings, as well as a rented storage unit in Taupō. At Mr Singh’s home address, the police located 7.3 grams of methamphetamine, despite Mr Singh’s unsuccessful attempt to flush it down the toilet, nine kilograms of cannabis packaged into dealing-sized weights, 1.5 kilograms of cannabis scraps and materials, $6,000 in cash, a cut-down Ruger .22 rifle and accompanying ammunition.

[7]    At Mr Singh’s storage unit in Taupō, the police located two cut-down Alfa Carbine rifles with their serial numbers ground off. They also located 36 cannabis plants being grown in two rooms. One room was lined with aluminium and fitted out with heat lamps and extraction fans, and the other was lined with white heavy plastic and grow lights. $50,000 in cash was also found at the storage unit.

[8]    At the rented Hastings workshop, a stolen Bobcat skid steel loader and a stolen tandem trailer were located. The Bobcat and trailer were valued at $67,000.

[9]    Mr Singh has a lengthy criminal history, starting in the Youth Court in 1987, the District Court in 1989 and the High Court in 2012. In 2012, Mr Singh was convicted of supplying methamphetamine, conspiring to supply methamphetamine and selling cannabis and sentenced to eight years and 11 months’ imprisonment. Mr Singh was also convicted of cannabis cultivation in 2005 and 1997.

The sentencing decision

[10]   On 12 May 2023, Mr Singh was sentenced in the District Court to six years and six months’ imprisonment.11

[11]The sentencing Judge divided the offending into three categories:12

11     R v Singh, above n 1, at [36].

12     At [20]–[22].

(a)Category one comprised the purchasing and cutting down of the Alfa Carbine rifles with accompanying ammunition to sell to unlicensed persons.

(b)Category two comprised the cultivation of cannabis, possession of cannabis for supply, possession of methamphetamine for supply and possession of the three cut-down firearms found during the 10 August search.

(c)Category three comprised receiving property and attempting to pervert the course of justice.

[12]   The Judge chose two lead offences: the category one firearm and ammunition offences, and the cultivation and possession of cannabis for supply offences. The Judge found that the firearms offending was among the most serious of its type and imposed the maximum sentence of four years’ imprisonment.13 He found that the cannabis offending fell into band three of the tariff sentencing case of R v Terewi, warranting four years’ imprisonment.14

[13]   The Judge imposed a one-year uplift for the methamphetamine charge, an 18- month uplift for the three cut-down firearms found during the 10 August search, a nine-month uplift for receiving and a three-month uplift for attempting to pervert the course of justice.15 The Judge imposed an additional uplift of one year for Mr Singh’s previous 2012 conviction for methamphetamine dealing to reach his starting point.16

[14]   After adding these uplifts, the Judge reached a starting point of 12 and a half years. The Judge then found that this was disproportionate to the offending and reduced the starting point to 10 years to reflect the totality of offending.17

13     At [23]–[24].

14     At [25]; R v Terewi [1999] 3 NZLR 62, (1999) 16 CRNZ 429 (CA) at [4].

15     At [27]–[29].

16 At [30].

17 At [30].

[15]   The Judge applied a 25 per cent reduction for Mr Singh’s early guilty plea, which reduced the sentence to seven and a half years’ imprisonment.18 The Judge found that as Mr Singh was able to build a successful life after his prison sentence in 2016, this overcame any causative influence of his background (identified in his s 27 report) on the current offending. The Judge accordingly declined to give a reduction for Mr Singh’s background.19 The Judge did, however, impose a one-year reduction for Mr Singh’s rehabilitative prospects and for the time he spent on EM bail, noting that the latter warranted a “tiny or small” reduction.20 This brought the total sentence to six and a half years’ imprisonment.

[16]   Finally, the Judge found that the purchasing, cutting down and on-sale of the Carbine rifles was so serious that the usual entitlement for parole at one third of the sentence would be insufficient to meet the principles of the Sentencing Act 2002. He imposed an MPI of one year and nine months for the representative category one charge.21 The Judge then made orders for forfeiture and destruction.

Parties’ positions

Mr Singh

[17]   Mr Forster, for Mr Singh, submits that the end sentence was manifestly excessive. In summary, Counsel identified three errors in the sentencing Judge’s decision. First, Mr Forster submitted that the starting point for the category one offending of four years’ imprisonment, being the statutory maximum, was too high. Second, Mr Forster argued that the cumulative starting point for the category two offending of six and a half years’ imprisonment was too high. He submits the offending was part of a single connected series of events, and did not justify a cumulative sentence. Third, the Judge failed to impose a 15 per cent discount for background factors identified in the s 27 cultural report.

18 At [31].

19     At [32]–[33].

20 At [33].

21 At [35].

Crown

[18]   Ms Mitchell, for the Crown, submits that the District Court did not err in the sentencing decision and the end sentence is not manifestly excessive. First, the Crown submits that it was appropriate to assign the maximum penalty for the weapons dealing charges of four years’ imprisonment because the offending was the most serious of its kind, involving a sophisticated operation with multiple purchasers and a large volume of weapons and ammunition. Second, Ms Mitchell submits that the Judge correctly treated the category two offending as different in kind from the category one offending and the Judge was not in error in imposing cumulative sentences. Third, Ms Mitchell submits that it was open to the Judge to find that Mr Singh had overcome his disadvantage in early life, and that his background did not contribute to the present offending.

Approach on appeal

[19]   The appellant’s right of first appeal against sentence is under s 244 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against the Judge’s discretion.22

[20]   In order to succeed, Mr Singh must show that there was an error in the sentence reached and that a different sentence should have been imposed.23 The Court will not intervene where the sentence is within the range available to the sentencing Judge.24 The Court will intervene only if the sentence is manifestly excessive.25

[21]   In Moses v R, the Court of Appeal introduced a general two-step approach to sentencing:26

(a)first, calculating the adjusted starting point by incorporating aggravating and mitigating features of the offence and considering similar offending for consistency; and

22     Filivao v R [2024] NZCA 103 at [30].

23     Criminal Procedure Act 2011, s 250(2).

24     Tutakangahau v R [2014] NZCA 279 at [36].

25     Kumar v R [2015] NZCA 406 at [81].

26     Moses v R [2020] NZCA 296 at [46].

(b)second, incorporating aggravating and mitigating factors personal to the offender, together with any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.

[22]   The end sentence should reflect the totality of the offending27 and, barring other considerations, be the least restrictive outcome that is appropriate in the circumstances.28

[23]   I deal with the issues on appeal but commence with the underlying premise for the Judge’s sentencing and the appellant’s grounds of appeal by addressing whether the categorisation of offences was problematic and led to error. I propose to deal with the issues on appeal in the following way:

(a)did the categorisation of offences lead to error;

(b)were cumulative sentences appropriate;

(c)was the starting point for firearm possession too high;

(d)was the sentence for the drug offending too high;

(e)were the uplifts and reductions fair and appropriate; and

(f)was the MPI justified.

Did the categorisation of offences lead to error?

[24]   Having divided the offending into three categories, the Judge applied the maximum sentence of four years for the possession of the 21 rifles and ammunition, invoked the starting point of four years for band three of R v Terewi29 for the cannabis offending, and gave further uplifts of one and a half years for the three cut-down firearms, one year for the remaining charges, and one year for the previous

27     Sentencing Act 2002, s 85; R v Dodd [2013] NZCA 270 at [32]–[33].

28     Sentencing Act, s 8(g).

29     Above n 14, at [4].

methamphetamine conviction in 2012. As I describe below, on the Moses v R30 approach, uplifts for aggravating factors should not be included in reaching the starting point of sentencing for current offending. Nevertheless, the Judge’s starting point of 12 and a half years was plainly disproportionate. As the Judge said:31

That takes me to 12 and a half years and at that point, Mr Singh, I am required to stand back and say well if all viewed together is that too much and it is and for totality, I would reduce the overall starting point to one of 10 years.

[25]   The reason for adopting a two-and-a-half-year adjustment for totality was not explained, but as the appellate authorities caution, the sentencing Judge must assess the offender’s overall culpability and determine what effective sentence is appropriate for the totality of his or her conduct.32 More recently, the Court of Appeal has cautioned that the totality analysis should be guided from the outset by an appreciation that the total period of imprisonment should be in proportion to the gravity of the overall offending.33

[26]   Similarly, the Crown in advancing its submissions before the sentencing Judge submitted a range of imprisonment sentences for each of the categories of offending which reached a starting point of nine and a half to 10 years’ imprisonment (on a calculation of the Crown’s suggested cumulative sentences) but submitted that, having regard to totality, an overall starting point of eight years and six months’ imprisonment was appropriate.

[27]   With such a marked reduction by the Judge of two and a half years, absent any reasons as to how that deduction was reached, and the Crown’s proposed deduction of one and a half years, it signals that the discrete cumulative sentences of imprisonment, together with their uplifts, resulted in a starting point wholly out of proportion to the gravity of the overall offending.34

30 Above n 26, at [46].

31 At [30].

32 R v Bradley [1979] 2 NZLR 262 (CA) at 263; R v Strickland [1989] 3 NZLR 47 (CA) at 50; R v Dodd, above n 27, at [32]–[33]; Ogden v R [2016] NZCA 214 at [64] and see Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SA85.01].

33 Hayward v R [2015] NZCA 551 at [11].

34 Sentencing Act, s 85(2).

[28]   I consider that two principal factors in the sentencing approach led to the disproportionate starting point. These were the Judge’s categorisation of the offences, leading to duplication of penalties for similar offending, and the imposition of cumulative sentences in respect of the category one and two offences.

[29]   The duplication in the categorisation of the offending is in relation to the possession of the three cut-down firearms from the 10 August search, which attracted an 18-month uplift, in addition to the category one possession of the 21 rifles and ammunition, which attracted a starting point of four years.

[30]   I accept Mr Forster’s submission that the discrete uplift for the three firearms duplicated the category one sentence when they all arose from a connected series of offences and should have been included in the category one offending.

[31]I deal now with the imposition of the cumulative sentences.

Were cumulative sentences appropriate?

[32]   After dividing the offending into three categories, the sentencing Judge found that the category one offending was separate from the category two offending, and therefore assigned two lead offences.35 The two lead offences were the purchasing and possession of the 21 Alfa Carbine rifles and ammunition (category one) and the cultivation and possession of cannabis for supply (category two), for which cumulative sentences were imposed. For the remaining category two offences, concurrent sentences were imposed as uplifts, as the Judge considered they were linked with the possession of cannabis offending. Concurrent sentences were also imposed for the category three offences and calculated as uplifts to the more serious offending.

[33]   Section 84 of the Sentencing Act gives guidance on the use of cumulative and concurrent sentences of imprisonment. Section 84(1) provides that where the offences are different in kind, cumulative sentences should usually be imposed, regardless of whether or not the offences were a connected series of offences.36 In R v Wharewaka, the Court held that determining whether two or more offences are different or similar

35     R v Singh, above n 1, at [25].

36     See also France, above n 32, at [SA84.02(1)].

in kind is “a factual common-sense appraisal of what would the ordinary sensible New Zealander make of it.”37 Where the offences are similar in kind and are a connected series of offences, concurrent sentences are usually appropriate. Subsection (3) provides that determining whether two or more offences are a connected series of offences involves considering the time at which the offences occurred, the overall nature of the offending and any other relationship between the offences that the court considers relevant.

[34]   Importantly, s 85 requires the Court to consider the totality of offending. If cumulative sentences of imprisonment are imposed, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.38 Of relevance to this appeal, s 85(3) provides:

If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

[35]   Notwithstanding the Crown’s submission that there was no error in treating the drug related charges as different in kind from the weapons dealing charges, I consider the offences here were similar in kind and were connected as a series of offences within Mr Singh’s operation. There was one police investigation which uncovered the supply of firearms, methamphetamine and cannabis as part of a single commercial criminal enterprise administered by Mr Singh. Firearms and drugs were found together at his home address and in his Taupō storage unit. He was selling firearms and drugs simultaneously and both activities featured significant involvement from gang associates. This is also consistent with Mr Singh’s explanation that both the drugs and arms dealing were conducted to repay a single debt to a gang.

[36]   Likewise, the possession of the 21 Carbine rifles and the three firearms found on 10 August, which had all been modified, are part and parcel of the same offending. The fact that they were located in different places does not warrant them being regarded as separate offending, albeit that two modified firearms were found at the

37     R v Wharewaka HC Auckland CRI-2004-092-4373, 28 April 2005 at [47].

38     Sentencing Act, s 85(2).

Taupō storage unit. Both the 21 Carbine rifles and the three modified firearms have been charged under the same offence of unlawful possession of firearms.

[37]   Here, the dual approach of dividing the similar offending into different categories and the imposition of cumulative sentences has led the Judge himself to conclude that 12 and a half years as a starting point was “too much and it is.”39 In my view, this reinforces that the appropriate approach here for this offending was the imposition of concurrent sentences.

Was the starting point for firearm possession too high?

[38]   In imposing the maximum sentence of four years imprisonment for the purchase and possession of the 21 Carbine rifles, the Judge reasoned as follows:40

Parliament has said that for offending which falls into the category of the most serious type of offending for that particular charge, then the maximum sentence is what is appropriate. The purchase and possession of the 21 Alpha carbine rifles which were cut down for the purpose of on-selling does not have to be the most serious offence of its type, it just has to come into the group of offending that would mean that it was in that group of offences for that charge which are of the most serious type. It has a maximum penalty of four years’ imprisonment.

[39]   Although the Judge said he could not locate a case for that charge which was more serious, he considered it “really does not matter too much because on any view this offending has to fall into the category, into the group of cases which are the most serious group”.41

[40]   Mr Forster’s submits that the offending in this case was not as serious as the offending in Police v Cranch,42 where this Court held that the possession of 19 military-style semi-automatic firearms and firearm parts that could form another three such firearms, warranted a starting point of three and a half years’ imprisonment. While acknowledging that the firearms offending was serious, Mr Forster submits that the offending in Cranch was more serious as it involved a high number of banned and potentially more dangerous military style semi-automatic firearms together with

39     R v Singh, above n 1 at [30].

40 At [23].

41 At [24].

42     Police v Cranch [2022] NZHC 461.

ammunition. He submits that the imposition of the maximum sentence for the present offending was manifestly excessive.

[41]   Ms Mitchell pointed to the sheer volume of weapons and ammunition, submitting that the present offending was sophisticated in its use of multiple different parties to make the initial purchases and aggravated by Mr Singh’s on-sale of the firearms in a gang context. She drew a distinction between weapons being held without any indication that they were intended for immediate use, as in Cranch, from the commercial nature of the present offending and submitted there was no error in categorising this offending as being amongst the most serious cases of its kind.

[42]   I consider the charge of possession of three cut-down firearms found on 10 August, the same charge for the category one offending, should have been considered with the 21 Carbine rifles and ammunition charges, as two of the three cut-down firearms were Alfa Carbine rifles that had been modified. The three modified firearms formed part of the commercial operation represented by the category one charges.

[43]   In my view, it is more appropriate to deal with the possession of firearms and ammunition, in the context of this sophisticated commercial operation of purchasing, modifying, and selling firearms, as an integral whole.

[44]   Considering the totality of the firearms offending, I find that it was more serious than the offending in Cranch because of the aggravating factor of commerciality. The modification and on sale of a large volume of firearms with accompanying ammunition to gang members puts this offending among the most serious of its kind. I therefore find that the totality of the firearms offending, being the category one offences and firearms offences in category two, warrants a four-year starting point. This was the most serious of Mr Singh’s offending and is the lead offence.

[45]   This contrasts with the five and a half years imposed by the sentencing Judge, comprising the four-year starting point for the category one firearms offending and the 18-month uplift for the category two firearms offending. I consider five and a half years to be too high in these circumstances.

Was the sentence for the drug offending too high?

[46]   The Judge found that the cannabis offending fell into band three of R v Terewi,43 the tariff judgment providing sentencing bands for cannabis offending, warranting a four-year imprisonment sentence. This was imposed separately and cumulatively to the sentence of four years for the category one offending.

[47]   Mr Forster submits that the starting point imposed for the cannabis offending was too high and that the cannabis offending fell within band two of Terewi as opposed to band three. He submits that the category two offending warranted a starting point of three and a half years or an uplift of two and a half years on the firearms offending and referred to comparable cases involving methamphetamine and firearms offending.

[48]Bands two and three identified in Terewi are reproduced below:44

Category 2: encompasses small-scale cultivation of cannabis plants for a commercial purpose, ie with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.

Category 3: is the most serious class of such offending. It involves large-scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point will generally be four years or more.

[49]   Ms Mitchell submits that the six-and-a-half year starting point for the category two offending was available to the sentencing Judge. This included the 18-month uplift for the three cut-down firearms. She submits that the nine kilograms of cannabis for supply in addition to the 36 plants was correctly categorised in band three of Terewi, as confirmed by the $50,000 in cash found at the storage unit. She also submits that a one-year uplift was available for the seven grams of methamphetamine, as this offending is at the bottom end of band two of Zhang, with that band attracting a starting point of two to nine years’ imprisonment.45

[50]   Defence Counsel in the District Court provided the sentencing Judge with a range of comparable cases on cultivation of cannabis, submitting that a starting point

43     R v Terewi, above n 14, at [4].

44 At [4].

45     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].

of two years and nine months was appropriate for these charges by reference to band two of R v Terewi, contrasting it with cases involving cultivation of over 549 cannabis plants compared to the 36 plants in this case.46

[51]   The Crown Solicitor in the District Court grouped the possession of methamphetamine and the cannabis charges together, noting that the 7.3 grams of methamphetamine placed the offending within band two of Zhang47 attracting starting points in the range of two to nine years’ imprisonment. The Crown accepted that other than quantity and the amount of cash, there were no other signs which suggested Mr Singh had anything other than a “lesser” role for the methamphetamine dealing. The Crown submitted to the Judge that the packaging of cannabis in pound weights and the size of the cultivation showed the defendant was engaging in commercial scale offending but within category two of Terewi. The Crown considered it was a seriously aggravating factor that the offending included the presence of three firearms and 55 rounds of ammunition, but that a starting point of three years and six months’ imprisonment was appropriate for all drug offending. A further uplift was sought for the three modified firearms.

[52]   I consider the Crown’s approach at the District Court to the drug offending was reasonable and appropriate. I find that an uplift of three and a half years’ imprisonment was appropriate for all the drug offending charges.

Were the uplifts and reductions fair and appropriate?

Uplift for prior offending

[53]   Prior offending is an aggravating factor personal to the offender. In reaching his adjusted starting point, the Judge gave a one-year uplift for the prior methamphetamine offending. This adjustment should not have been made to the starting point. The Court of Appeal in Moses held that uplifts and reductions for personal factors are to be incorporated in the second stage of sentencing after calculating the adjusted starting point for the offending.48

46     R v Ellis HC Napier CRI-2003-020-4830, 4 December 2003.

47     Zhang v R, above n 45, at [125].

48     Moses v R, above n 26, at [46].

[54]   In Jones v R, the Court of Appeal held that uplifts for previous convictions are warranted only if they indicate a tendency to commit the particular type of offence for which the defendant is before the Court.49 The sentencing Judge found there was a clear nexus between Mr Singh’s methamphetamine dealing offending in 2012 and the current drug offending. He imposed an uplift of one year, notwithstanding that both the Crown and defence submitted that a lesser uplift was warranted.50

[55]   The Judge acknowledged that it was important that courts do not punish twice for previous offending yet imposed an uplift of one year for the 2012 methamphetamine offending. With the Judge’s assessment of five years’ imprisonment for the cannabis and methamphetamine offending, an uplift of one year was equivalent to an uplift of 20 per cent, which is materially higher than uplifts issued for similar prior offending.51 Mr Singh has served his sentences for his prior offending and an uplift should not punish twice. I consider the midway point between the Crown and defence submissions of an uplift of six months to be appropriate to recognise the risk to the community of ongoing offending.

Background, rehabilitation and EM bail

[56]   The sentencing Judge imposed a one-year reduction for rehabilitative potential and time spent on EM bail, although said the reduction for the latter was “tiny or small”.52 The Judge declined to issue a discount for background factors.

[57]   Mr Singh’s s 27 report describes what are causative contributions to his offending arising from his background, especially his dysfunctional family upbringing and the pervading presence of gangs throughout his life. Mr Singh’s ability to build a successful life after leaving prison in 2016, as the Judge noted, reduces the extent these factors mitigate his culpability with regard to the present offending.

49 Jones v R [2021] NZCA 402 at [33].

50 R v Singh, above n 1, at [30]. The Crown and defence proposed uplifts of three to six months and six to nine months respectively.

51 See, for example, R v Chanthawong [2022] NZHC 1623 at [56] (the Court imposed a 15 per cent uplift imposed for previous serious drug offending occurring 10 and 6 years earlier); and Hunt v R [2024] NZCA 10 at [40] (the Court upheld a 15 per cent uplift for prior methamphetamine offending occurring 20 years earlier).

52 R v Singh, above n 1, at [33].

[58]   I uphold the Crown’s submissions that the absence of a reduction for personal circumstances is offset by the generous discount imposed by rehabilitative potential and time spent on EM bail. A one-year reduction from an eight-year starting point is a reduction of 12.5 per cent, which sufficiently accounts for Mr Singh’s background, rehabilitative potential and time spent on EM bail.

Conclusion

[59]   I find the sentence of 6 years and 6 months’ imprisonment was manifestly excessive. The adjusted starting point of 12 and a half years was disproportionate to the gravity of this offending and arose as a result of the following factors in the calculation of the starting point:

(a)cumulative sentences were imposed for the category one and two offences rather than concurrent sentences;

(b)the categorisation of the offending duplicated the firearms and ammunition offending;

(c)the sentence for drug offending was too high;

(d)the uplift for prior offending was wrongly included as part of the starting point; and

(e)the uplift for prior offending was punitive.

[60]   The uplift however of one year for the category three offences was available and appropriate.

[61]   I find the correction of the above errors results in an adjusted starting point for the present offending of eight and a half years’ imprisonment. This is made up of the four-year starting point for the firearms and ammunition offending, the three-and-a- half year uplift for the methamphetamine and cannabis offending and the one-year uplift for category three offending. From the starting point of eight years and six months, a further uplift for prior offending of six months brings the total to nine years

with a reduction of 25 per cent for the guilty plea and a one-year reduction for Mr Singh’s background, rehabilitative prospects and EM bail.

End sentence

[62]   I set aside the sentence of six years and six months’ imprisonment and impose a sentence of five years and 10 months’ imprisonment as follows:

Particular	Maths	Running total
Starting point for lead offence	Possession of 21 Carbine rifles and three sawn-off rifles	4 years	4 years
Uplifts for concurrent offending	Possession of cannabis and methamphetamine for supply Receiving and perverting course of justice	3 years, 6 months 1 year	7 years, 6 months 8 years, 6 months
STARTING POINT	8 years, 6 months
Uplift for prior offending	2012 methamphetamine dealing	+ 6 months	9 years
Reductions	Guilty plea Background, rehabilitative prospects and EM bail	- 25% 2 years, 2 months - 1 year	6 years, 10 months 5 years, 10 months
END SENTENCE	5 years, 10 months

Was the MPI justified?

[63]   The sentencing Judge imposed an MPI on the category one offences of one year and nine months, which the Judge noted was “slightly more than 60 per cent” of the “three-year term of imprisonment imposed for this charge.”53 However, the term he had imposed for category one offending was four years.

[64]   The non-parole period for the sentence of six years and six months was two years and two months which is greater than the MPI imposed by the sentencing Judge. The MPI was not available therefore, and should be set aside.54

53     R v Singh, above n 1, at [35].

54     Sentencing Act, s 86(2); Parole Act 2002, s 84(1).

[65]   An MPI may be imposed where the offending was sufficiently serious such that the defendant serving the normal minimum period of imprisonment (the non- parole period) of one third of the sentence would be insufficient to achieve a purpose of denunciation, punishment, deterrence or protection of the community.55

[66]   I have considered the letter which Mr Singh provided to the Court detailing the personal tragedies that have occurred to him after being charged with these offences and his deep remorse for his actions that have caused pain and suffering to his family. His remorse and his desire to make amends by seeking to undertake steps for rehabilitation on his release deserve consideration.

[67]   I do not impose an MPI in this case, as I consider the non-parole period is sufficient to achieve the purposes of sentencing, particularly taking into account Mr Singh’s rehabilitative prospects and the assessment which the Parole Board can bring to bear on Mr Singh’s release date.

Conclusion

[68]The appeal is allowed.

[69]   The sentence of six years and six months’ imprisonment with an MPI period of one year and nine months is set aside.

[70]A sentence of five years and ten months’ imprisonment is imposed.

Cull J

Solicitors:

Bramwell Bate Solicitors, Hastings, for Appellant Crown Solicitor, Napier, for Respondent.

55     Sentencing Act, s 86(2); Parole Act, s 84(1); France, above n 32, at [SA86.02(1)].