Khangura v Police

[2018] NZHC 203

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV2017-404-000462 [2018] NZHC 203

BETWEEN

HARPREET SINGH KHANGURA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	13 & 16 February 2018
Counsel:	N Baier and H Redwood for Appellant (13 February 2018) A Prasad and H Redwood for Appellant (16 February 2018)
Judgment:	21 February 2018

JUDGMENT OF DUFFY J

This judgment was delivered by me on 21 February 2018 at 2.15 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:

Public Defence Service, Auckland

Meredith Connell, Auckland

HARPREET SINGH KHANGURA v NEW ZEALAND POLICE [2018] NZHC 203 [21 February 2018]

[1]      Following a Judge alone trial in the District Court before Judge Simpson, the appellant, Mr Harpreet Singh Khangura, was convicted on one charge of indecent assault1 and one charge of burglary.2  He was subsequently sentenced to two years and three months’ imprisonment.

[2]      Mr Khangura now appeals against that sentence.

Factual background

[3]      At the relevant time Mr Khangura lived in an apartment complex in central Auckland.  The victim, the complainant, lived at the same apartment complex.  She and Mr Khangura did not know each other.

[4]      At around 8pm on 29 March 2017, Mr Khangura saw the complainant walking along Queen Street.  He followed her to the apartment complex where they both live. He entered the building and got into the lift at the same time as the complainant.  He exited the lift at the 8th floor where the complainant’s apartment is located.

[5]      Mr Khangura followed the complainant to the door of her apartment where he told her, “You look so sexy.”

[6]      The   complainant   ignored   him   and   began   unlocking   the   front   door.

Mr Khangura grabbed the complainant’s arm with both hands and pulled her away from the door.  The complainant managed to free herself and went inside her apartment.

[7]      She then tried to shut the door, but could not because Mr Khangura was trying to push it open from the outside.  A struggle over the door ensued for roughly one minute. The complainant called for help from a flatmate.

[8]      During the struggle, Mr Khangura reached inside the door with one hand and squeezed the complainant’s buttock over her clothes.

1      Crimes Act 1961, s 135; maximum penalty seven years’ imprisonment.

2      Crimes Act 1961, s 231; maximum penalty ten years’ imprisonment.

[9]      The complainant abandoned the door and fled to her flatmate’s bedroom.  Her flatmate emerged from an en-suite bathroom adjoining the bedroom. The complainant hid behind him. Mr Khangura entered the bedroom, saw the flatmate and then left the apartment.

[10]     Mr Khangura returned to the apartment shortly afterwards to apologise.  He knocked   on   the   door   which   was   answered   by  the   complainant’s   flatmate.

Mr Khangura apologised to him and explained that he had followed the complainant home because he thought  she  was  attractive.    He then left  and  returned  to  his apartment.

District Court Decision

[11]   Judge Simpson adopted a starting point of two years and six months’ imprisonment.  A discount of three months was given to reflect Mr Khangura’s age and remorse.

[12]     The Judge acknowledged that Mr Khangura was affected by alcohol, but did not consider that he was so affected that he was unable to control himself. The Judge also rejected the submission that Mr Khangura was forced to drink by other people.

[13]     Despite the probation officer recommending home detention and community work, Judge Simpson said that a period of imprisonment was the most appropriate sentencing response to this manner of offending.   In reaching this conclusion, the Judge had regard to the seriousness of offending which involves home invasion.

Grounds of Appeal

[14]     Mr Khangura appeals against his sentence on the ground that the sentence imposed by the Judge was manifestly excessive due to the following two errors:

(a)       The adoption of a starting point which was manifestly excessive; and

(b)      The failure to provide credit for previous good character.

Appellant’s submissions

[15]     Mr Khangura submits that the starting point adopted by Judge Simpson was excessive. Attention is drawn to several cases which are said to involve more serious offending.3   He submits that each of these cases involves:

(a)       A higher level of premeditation;

(b)      More time spent within the property;

(c)       More serious indecent assaults;

(d)      Offending that took place while the victims were asleep;

(e)       A higher degree of victim vulnerability and breach of trust.

[16]     In each of these cases, the Judge found a sentence starting point of between two years and three months’ and two years and six months’ imprisonment.

[17]     Mr Khangura also submits that the Judge erred in not providing credit for his previous good character under s 9(2)(g) of the Sentencing Act 2002.  Regard was had to Rana v R, which states that lack of previous convictions is evidence of previous good character and must be taken into account if applicable.4

[18]     Finally, Mr Khangura submits that if his submissions are accepted by the Court, the end sentence would be within the range of an electronically monitored sentence, and that home detention would be an appropriate outcome. He submits such a sentence would meet the purposes and principles of sentencing and also would be in line with

the recommendations of the Provision of Advice to Courts (PAC report).

3      R v Ielemia CA405/01, 14 March 2002; Penitani v Police [2014] NZHC 1622; Palalagi v Police

[2015] NZHC 1832.

4      Rana v R [2014] NZCA 468 at [16].

Respondent’s submissions

[19]     The respondent submits that the starting point adopted by Judge Simpson was stern but not excessive.

[20]   Regard is had to Senior v Police as authority for the proposition that confrontation of the occupiers of a home is an aggravating factor for burglary.5   The respondent emphasises the fact that Mr Khangura forced entry into the complainant’s apartment.

[21]     It is acknowledged that the nature of Mr Khangura’s indecent assault is less serious than those in the cases cited by him.  However, the respondent argues that the forcefulness of his entry into the apartment places his offending on a similar tier of seriousness.

[22]     In terms of a discount for previous good character, the respondent submits that this is a matter of discretion for the sentencing judge.  In any case, it is submitted that taking into account the totality of the offending, a final sentence of two years and three months is appropriate.

Appeal against sentence

[23]     Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a)       for any reason, there is an error in the sentence imposed on conviction;

and

(b)      a different sentence should be imposed.

[24]     In any other case, the Court must dismiss the appeal.6

[25]     The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.7 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.8

Analysis

Starting point

[26]     Has Judge Simpson made an error in deciding to adopt a starting point of two years and six months’ imprisonment?   I have been referred to a number of cases involving burglary and indecent assault.9   To this list I might add R v Wainohu.10   In each case, a sentence starting point of two years and three months or two years and six months was adopted.

[27]     The guidance provided by these cases is useful, but I note that Mr Khangura’s offending does not fit neatly into the same mould of offending.  This mould can be described roughly as the following: the offender sneaks into the victim’s home, commits an indecent assault upon them as they sleep, and then flees when they wake up.

[28]     In a sense, Mr Khangura’s offending is both more and less serious.

[29]     Mr Khangura’s offending is more serious due to the manner in which he entered the complainant’s home. Those committing burglary often enter the property in a clandestine manner.  Mr Khangura, however, forced his way inside despite the complainant’s best efforts to keep him out.  Actual confrontation of the occupiers is regarded as an aggravating feature of burglary.11  This is because it is seen to heighten the sense of violation felt by victims, and damage the feelings of security they

associate with their homes.

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

8      At [33], [35].

9      R v Ielima CA405/01, 14 March 2002; Penitani v Police [2014] NZHC 1622; Palalagi v Police

[2015] NZHC 1832; R v King [2013] NZHC 3362.

10     R v Wainohu HC Hamilton CRI-2006-019-4772, 16 February 2007.

11     R v SMF [2013] NZHC 2841 at [21]; Senior v Police (2000) 18 CRNZ 340 (HC).

[30]     Mr Khangura’s entry into the complainant’s home was both forceful and protracted.   In this sense, it could be regarded as more serious than the offending involved in the cases I have been referred to.

[31]     On the other hand, Mr Khangura’s offending is less serious because of the nature of the indecent assault.  The offending in the referred cases involved skin-on- skin contact. It also often occurred when the victim was asleep, heightening the degree of vulnerability.

[32]     Mr Khangura’s indecent assault consisted of him grabbing the complainant’s buttock over her clothing. This manner of indecent assault has been regarded as “low on the scale of seriousness”.12   However, that does not mean it should be disregarded. The case R v SMF involved a similar indecent assault taking place within a burglary, and noted the “element of home invasion… and the additional impact as a consequence for the victims”.13

[33]     While the element of home invasion is implicit in the burglary charge, the additional impact of the indecent assault on the complainant should be taken into account. Although the physical contact itself was minor, it should be regarded in the broader context of the offending. This includes the sexual advance made towards the complainant by Mr Khangura outside the door and the forcefulness of his entry into her apartment.  Overall, the incident of the indecent assault formed part of a sexual element in the offending and no doubt would have increased the sense of distress and violation felt by the complainant.

[34]     Although the indecent assault was less serious than those involved in the guiding cases, I do not think that it should be dismissed as unimportant.

[35]     There may be some discrepancy between the seriousness of Mr Khangura’s indecent assault and the indecent assaults in the cases referred to me.   But any discrepancy in the seriousness of the offending overall is more than made up for by the forceful and protracted nature of Mr Khangura’s entry into the complainant’s

apartment.  I consider that this confrontation places Mr Khangura’s offending on a similar level of seriousness as the offending involved in the cases to which I have been referred.

[36]     In the circumstances, I do not believe Judge Simpson made an error in adopting a sentence starting point of two years and six months’ imprisonment.  It was at the upper end, but still within the range that was open to her.

Discounts for remorse and age

[37]     Judge  Simpson  reduced  the  starting  point  by  three  months  to  reflect

Mr Khangura’s age and remorse.  This was a discount of 10%.  I consider a higher discount for remorse is warranted.   Mr Khangura expressed remorse to the victim shortly after the incident.  Further, Mr Khangura was interviewed by police at 11.47 pm on the night of the incident.  He admitted the indecent assault and said he was sorry. He denied entering the victim’s apartment, but he did admit pushing against the entrance door. At the end of the interview he was arrested for indecent assault.

[38]     The day after the case review hearing a sentencing indication was sought from

Judge Ronayne.  The indication was well outside the range of available sentences.14

The starting point was four years’ imprisonment with a 20% discount for a guilty plea. Given the range of starting points to which I have already referred the indicated starting point was manifestly excessive.  Ms Prasad submits that once Mr Khangura learned of this outcome he became scared and did not want to admit anything.  His grandparents, who have been his primary caregivers all his life, live in India.  He is close to them and telephones them regularly.  A sentence of imprisonment would not permit him to maintain that contact.

[39]     He is a young man who is new to this country and he has not offended before. I can understand that the prospect of a sentence of just over three years imprisonment would have been very daunting for him. Ms Prasad submitted that had a starting point of two years’ imprisonment been indicated, that, coupled with the discount for a guilty plea, would have been accepted.   Taken together with other available mitigation

discounts the end sentence would have left open the option of a non-custodial sentence.

[40]     Usually the entry of a guilty plea is an indicator of remorse. It is more difficult to persuade a Court an offender is remorseful when the charges have been defended. However, here there is a reasonable and acceptable explanation for why Mr Khangura went to trial.  I consider that his conduct shortly after the offending is consistent with genuine remorse.  In such circumstances I consider that the 10% discount he received for remorse and age was insufficient.  I consider the more appropriate discount for these factors is one of 12.5%.

Previous good character

[41]     I must now consider whether Judge Simpson erred in not applying a discount on account of Mr Khangura’s previous good character as evidenced by his lack of convictions.

[42]     Previous good character is listed as a mandatory consideration under  the

Sentencing Act.15

[43]     It is submitted that following R v Rana, a discount of roughly eight percent is an appropriate adjustment to make when dealing with offenders with no previous convictions.16    The lack of previous convictions is regarded not as the lack of an aggravating factor, but rather as a mitigating factor in its own right.  In the context of burglary, lack of previous convictions has been found to be of some credit to the offender.17

[44]     In light of the relevant law, I consider that Judge Simpson erred by not applying a discount to reflect Mr Khangura’s previous good character.   In reaching this conclusion I have had regard to Mr Khangura’s lack of prior convictions and the fact

that his wife and flatmates have written letters testifying to his good character.

15     Sentencing Act 2002, s 9(2)(g).

16     Rana v R [2014] NZCA 468 at [16]. See also Ashby v Police [2015] NZHC 1900.

[45]     I consider that a discount of seven-and-a-half percent is appropriate in the circumstances.  This amounts to a total discount of 20% which brings the sentence down to one of two years’ imprisonment.

[46]     The sentence I have reached renders Mr Khangura eligible for a non-custodial sentence.  The PAC report says he has a low risk of reoffending.  The impression I gained from watching his evidential video was that he was a young man who had acted without realising the seriousness of his conduct at the time, that he later had this understanding and regretted his actions.  The PAC writer recommended a sentence of home detention and community work.  I consider such a combination of sentences to be sufficient to meet the circumstances of this case. It provides an appropriate balance between the need for denunciation and deterrence as well as the need to take account of rehabilitation and to impose the least restrictive sentence possible.

[47]     In R v Hill the Court of Appeal recognised the public interest advantages of a sentence of home detention in comparison with a short sentence of imprisonment: 18

[33]     The sentence of home detention reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment. The explanatory note at p 5 identifies the “acknowledged advantages” of home detention as including “low rates of re-conviction and re-imprisonment, high compliance rates, and positive support for offenders’ reintegration and rehabilitation”.

I consider the views expressed in Hill to be relevant here.

[48]     The PAC report stated the proposed home detention address is suitable and the occupants agree to Mr Khangura serving a sentence of home detention from that address.

[49]     Accordingly,  a  sentence  of  10  months  home  detention  and  100  hours community work will best serve society’s interests. The duration of the sentence takes into account the two months’ imprisonment that Mr Khangura has presently served. The standard home detention conditions are imposed as are the following special conditions recommended in the PAC report:

1.Not to possess, consume or use any alcohol or drugs not prescribed to him

2.To attend and complete an appropriate substance abuse programme to the satisfaction of a probation officer.   The specific details of the appropriate programme shall be determined by a probation officer.

3.Not to associate with or contact the victim without the prior written approval of a probation officer.

4.To attend and complete an appropriate programme to the satisfaction of  a  probation  officer.    The  specific  details  of  the  appropriate

programme shall be determined by the probation officer.

Result

[50]     The appeal against sentence is allowed.  The sentence of imprisonment is set aside and in its place Mr Khangura is sentenced to 10 months’ home detention with the above conditions and 100 hours community work.

[51]     The sentence is to be served at the home detention residence of 1759C Great North Road, Avondale, Auckland.  On release from prison Mr Khangura is to travel directly to 1759C Great North Road, Avondale, Auckland and wait for a security guard to connect the home detention equipment.