R v Dhillon
[2021] NZHC 1449
•18 June 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-004-6762
[2021] NZHC 1449
THE QUEEN v
RAVJOT DHILLON
Hearing: 18 June 2021 Appearances:
R Tasman-Jones for Crown O Hinze for Defendant
Judgment:
18 June 2021
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Auckland
R v DHILLON [2021] NZHC 1449 [18 June 2021]
[1] Mr Dhillon, you appear for sentence today having been found guilty by a jury on a charge of assault with intent to injure.1 The maximum sentence for that charge is three years imprisonment.
[2] I have declined your application for an order under s 106 of the Sentencing Act 2002 that you be discharged without conviction. My reasons for that decision will be contained in a separate judgment to be issued later today.
[3] At trial you also faced two charges of being a party to wounding with intent to cause grievous bodily harm, but the jury found you not guilty on those charges. You are therefore to be sentenced only on the charge of assault with intent to injure.
Factual background
[4] The charges were laid as a result of an incident that occurred late in the evening of 3 July 2017. On that evening, a Mr Momi and two friends attended a party at a residential address in Mount Wellington. During the evening an argument arose between members of Mr Momi’s group and a group of other persons who were also present at the address. It is not known what prompted the argument, but from comments Mr Momi made subsequently it appears that things were said by the other group that embarrassed Mr Momi and his associates. The argument became sufficiently heated that an occupier of the address asked Mr Momi and his associates to leave. As they left, several eyewitnesses heard them saying words to the effect “We will return”, or “We will see you again”.
[5] Approximately one and a half hours later the persons with whom Mr Momi and his associates had been arguing left the address to get some food. As they did so, two cars drove into the street. Eight to ten persons got out of the cars, several of whom were carrying weapons. These persons immediately began attacking the persons who had been leaving the address.
[6] The physical altercation that then ensued resulted in the police being called by persons in the vicinity. A police patrol vehicle arrived just as the persons who had
1 Crimes Act 1961, s 193.
carried out the attack were endeavouring to leave the scene in their vehicles. The police immediately blocked the street and prevented the attackers from leaving. You were found in their number.
[7] The police found that three persons had been injured during the attack. One of these, Mr Hayer, had a fracture to his skull, a laceration to his head and bruises to his body. These injuries required hospitalisation and surgery. The second complainant, Mr Manpreet Singh, had several scalp lacerations as well as a laceration to his right index finger and multiple bruises to his back. These required medical attention in the form of staples and stitches. The charges of wounding with intent to cause grievous bodily harm related to these two complainants. The third complainant, Mr Gursharan Singh, sustained relatively minor grazes and bruising to his face and arm. The charge of assault with intent to injure on which you were found guilty related to the attack on him.
[8] The police found a variety of weapons in the area where the attacks had occurred. Other weapons were also found in the vehicles in which the attackers had endeavoured to leave the scene. The police arrested virtually all the persons travelling in those vehicles. In total eight persons were initially charged with the alleged offending. Thereafter, however, it took nearly four years for the charges to be the subject of a trial in this Court. By that time you, Mr Momi and Mr Amandeep Singh were the only defendants still in New Zealand. The remaining defendants had been able to leave the country and return to India.
[9] In order to sentence you it is necessary to reach findings of fact regarding your role in the incident that led to the charge on which you were found guilty. You were not present at the party where the argument between Mr Momi’s group and the other group occurred earlier in the evening. You came to the address after being summoned to do so by Mr Momi. During the trial a text message from Mr Momi to you containing the address of the place where the incident occurred was produced. When the police arrived at the scene, they found you in bare feet. You told the police that you had been telephoned by Mr Momi to come and collect him and you had not bothered to put shoes on. You maintain you drove to the scene with another defendant, Mr Lovepreet Singh, and people began getting into your car as soon as you arrived. You denied
having played any part in the assault on any of the complainants. The jury plainly took a different view in relation to Mr Gursharan Singh and I am bound by their verdict.
[10] The Crown submits the jury’s not guilty verdicts are explicable on the basis that you arrived at the scene knowing the group you were with shared a common intention to inflict physical harm on the persons with whom Mr Momi and his associates had been arguing earlier in the evening. However, unlike Mr Momi and Mr Amandeep Singh, the Crown says the jury must have found you did not know that the infliction of grievous bodily harm on those persons was something that could well happen in carrying out the common purpose.
[11] I accept this submission. You took your vehicle to the scene even though you may not have been driving. I am also satisfied beyond reasonable doubt that only two cars went to the scene and that one of those did not leave as was suggested during the trial. This means you went there with several persons in your vehicle and you remained there until the police stopped you and the others from leaving.
[12] I consider the jury found you guilty of the charge of assault with intent to injure because an eyewitness, Mr Manes, said he saw a person wearing a red hoodie similar to that which you were found wearing, pushing the third complainant, Mr Gursharan Singh. Whilst this was going on two others were hitting him, one of them using a stick. I consider it likely the jury accepted you were a party to the assault on Mr Singh but that you did not know that the group’s common purpose meant there was a real likelihood really serious bodily harm would be inflicted as a result.
Starting point
[13] Counsel have cited several sentencing authorities in relation to the issue of starting point. However, as they both acknowledge, cases in this area are always fact specific so other cases are of very limited assistance. The Crown submits your offending justifies a starting point of 15 months imprisonment and that, after mitigating factors are taken into account, an electronically monitored sentence may be appropriate.
[14] The starting point selected for your sentence must reflect the fact that the offending involved violence administered in a pre-meditated group attack. Weapons were also used although not by you. I consider the Crown’s submission in relation to starting point to be far too high given the relatively low level of your own participation, the minor injuries to the complainant and the fact that you did not share the knowledge of other members of the group that their offending could well cause really serious bodily harm.
[15] I consider a starting point of around six months imprisonment is appropriate. This reflects the fact that, although may not have caused the complainant any injuries yourself, you nevertheless chose to become involved in a group attack on a single complainant in which you knew a weapon was being used by another member of the group.
Aggravating factors
[16] You are 29 years of age and have no previous convictions. There is therefore no justification to uplift the starting point I have selected to reflect aggravating factors personal to you.
Mitigating factors
[17] You have been a permanent resident of this country since 2014 and you appear to have been a model resident before the present offending. You continue to hold responsible employment. It is also clear from the letters of support I have received today that you are held in very high regard by members of the Sikh community for whom you have carried out a great deal of voluntary work. I would ordinarily allow a discount of one month, or around 15 per cent, to reflect your previous good character.
[18] The Crown also accepts you are entitled to a discount to reflect the fact that your trial was delayed unduly for a considerable period through no fault of your own. You were initially arrested on 3 July 2017. A trial was scheduled in the District Court for October 2018. In April 2018, however, a decision was made that you and your co- defendants would be tried in this Court. Your trial was originally scheduled to begin on 25 February 2019. This fixture had to be adjourned after the Crown provided very
late disclosure of the results of DNA testing on clothing taken from the defendants in the case.
[19] Your trial was then re-scheduled for April 2020, but this fixture had to be vacated because of the onset of the COVID-19 pandemic. A new date was set for April 2021. The trial eventually commenced on 19 April 2021. There was therefore a delay of three years nine months in bringing the charges to trial.
[20] It is now well established that undue pre-trial delay may be met with a reasonable and proportionate reduction in sentence.2 In this context the right to be tried without undue delay relates to the time that elapses between arrest and final disposition.3 Whether the delay is undue is determined by reference to time, cause and circumstance.4 In the present case I am assisted by the fact that one of your co- defendants, Mr Amandeep Singh, applied for a stay of the proceedings after the vacation of the second trial fixture on the ground that his right to be tried without undue delay had been breached. Downs J held that there had been undue delay but nevertheless declined the application.5
[21] The undue delay in the present case was caused for the most part by the late disclosure by the Crown of the DNA evidence in February 2019. Had that not occurred, your trial would have proceeded in that month. The ultimate result of the Crown’s actions in providing late disclosure was therefore that your trial was delayed for two years beyond the date it should have been held. It also meant you were subject to bail conditions, albeit not stringent bail conditions, for a very lengthy period.
[22] When I sentenced Mr Momi and Mr Amandeep Singh, I applied a discount of approximately 17 per cent to reflect this factor.6 This would result in a reduction in your case of a further month from your sentence, leaving a sentence of four months imprisonment. As the Crown acknowledges, your lack of previous convictions and the relatively low level of your offending would ordinarily see this sentence converted
2 Williams v R [2009] NZSC 41, [2009] 2 NZLR 750 at [18].
3 New Zealand Bill of Rights Act 1990, s 25(b); Williams v R, at [10].
4 At [12].
5 R v Singh [2020] NZHC 1195.
6 R v Momi [2021] NZHC 1384 at [27] and [31].
to one of two months home detention or a corresponding sentence of community detention.
[23] I note that the pre-sentence report recommends a sentence of community detention, coupled with a sentence of supervision or intensive supervision with judicial monitoring. These recommendations need to be viewed in light of the fact that the report writer evidently believed that you had been found guilty on a charge of wounding with intent to cause grievous bodily harm rather than the much lesser charge of assault with intent to injure. I do not consider a sentence of supervision, let alone intensive supervision, is necessary in your case because there nothing in your previous history to suggest you need to be subject to supervision in the future.
[24] I am satisfied the length of time it has taken to have the charges resolved in this case has been a form of punishment in itself. I consider it would be pointless to now require you to serve a very short electronically monitored sentence. This might cause you to lose your employment as a courier driver, something that may well happen in any event as a result of your conviction. The references that have been provided on your behalf demonstrate that you regularly undertake activities that help others in your community on a voluntary basis. I consider a continuation of this type of activity is the appropriate sentence in your case. I therefore consider your sentence should be one of community work.
Sentence
[25] On the charge of assault with intent to injure you are sentenced to 100 hours of community work.
[26]Stand down
Lang J