R v Dhillon
[2018] NZHC 820
•27 April 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-092-8415
[2018] NZHC 820
THE QUEEN v
GANGANDEEP SINGH DHILLON
Hearing: 27 April 2018 Appearances:
G R Kayes and H Benson-Pope for Crown J C Harder for Defendant
Judgment:
27 April 2018
SENTENCING REMARKS OF LANG J
R v DHILLON [2018] NZHC 820 [27 APRIL 2018]
[1] Mr Dhillon, you appear for sentence having pleaded guilty to four charges of aggravated robbery, one charge of robbery and one charge of burglary. The charges of aggravated robbery carry maximum sentences of 14 years imprisonment, whilst the remaining charges carry maximum sentences of ten years imprisonment.
Background
[2] You pleaded guilty following a sentence indication on 20 March 2018.1 In the course of the indication I set out in full the factual circumstances giving rise to the charges. I see no need to repeat that factual summary for present purposes. My sentence indication will be annexed to my sentencing remarks and will form part of it. In short, however, the charges relate to a series of events that occurred between June and July 2017. Each of them involved you either carrying out a robbery or burglary yourself, or providing others with information to enable them to carry out aggravated robberies. You attended yourself at one of the aggravated robberies when a weapon was produced by your co-defendant, Mr Nuku. The robberies resulted in considerable trauma to the victims. They also resulted in a considerable quantity of property being stolen. You were the beneficiary of property stolen in some of the robberies.
[3] I selected a starting point of 12 years six months imprisonment on all charges. I did that after undertaking an analysis of other cases I considered to have some similarity to yours. I then allowed a discount of three years two months, or approximately 25 per cent, to reflect your guilty pleas. I indicated that it might be possible for me to reduce the end sentence further depending on material produced at sentencing including information contained in the pre-sentence report.
[4] I now have the benefit of a pre-sentence report, together with submissions from your counsel. The pre-sentence report reveals that you began offending after you became involved with associates who were consuming drugs. They persuaded you to consume drugs as well. This led you to providing your associates with details of persons whom you knew who could be the target of robberies. Nothing in the pre- sentence report or your counsel’s submissions causes me to change my mind in any way regarding the overall culpability of your offending.
1 R v Dhillon [2018] NZHC 471.
Mitigating factors
[5] Your counsel submits that I should reduce the sentence further to reflect two factors. The first of these is the remorse you have shown and rehabilitative efforts you have undertaken whilst in prison. The remorse comes from comments you have made to the person who prepared the pre-sentence report. These demonstrate some insight into your offending. You have also carried out some courses whilst in prison, although I give that factor limited weight.
[6] Finally, you offered to attend a restorative justice conference with your victims. This may have been of some value because your victims were known to you. Ultimately, however, this proved not to be possible but I am satisfied you should be given some credit for the fact you were prepared to front up to your victims and acknowledge your wrongdoing. I propose to make an allowance of five months to reflect this factor.
[7] Your counsel submits you should receive a further discount to reflect the fact that you will be serving a lengthy sentence of imprisonment in New Zealand rather than in your homeland. The courts sometimes give offenders credit for the fact that they will be required to serve a sentence of imprisonment away from their country of origin. Generally, however, this reflects the fact that prisoners in that position will feel a sense of isolation. Often they will not speak the English language and they will be forced to eat food and observe customs completely foreign to them. In addition, they are isolated from their families and have no ability to have any form of contact with friends or family overseas.
[8] I place you in a different category. You have been living in New Zealand for some time now. You have no issues with the English language and I take you to be familiar with New Zealand food and customs. I accept that you only have one relative in New Zealand and she may have some difficulty in visiting you in prison. In addition, you have an elderly mother overseas and she is in ill health. I do not consider it appropriate, however, to provide a further discount for these factors. When people commit serious offences they render themselves liable to a lengthy sentence of imprisonment. Inevitably this means they will lose contact with family and associates.
Many prisoners in New Zealand will be suffering the same kind of privation that you will be suffering in this context. For that reason I make no further allowance to reflect the fact that you will be required to serve a sentence of imprisonment in this country. This means that the end sentence is one of eight years 11 months imprisonment.
Minimum term of imprisonment
[9] In the sentence indication I said that I would impose a minimum term of imprisonment of four years to reflect the fact that it was necessary to give effect to the sentencing principles of deterrence, denunciation and the need to hold you accountable. I selected that as a rounded number rather than as a percentage. Nevertheless, as your counsel points out today, it amounted to a minimum term of 43 per cent of the end sentence. Applying that percentage to the new sentence, I propose to impose a term of three years ten months imprisonment.
Sentence
[10] On each of the charges of aggravated robbery, you are sentenced to eight years 11 months imprisonment. Those sentences are to be served concurrently with each other. On the robbery and burglary charges, you are sentenced to concurrent sentences of 18 months imprisonment. On each of the charges of aggravated robbery you are ordered to serve a minimum term of three years ten months imprisonment before being eligible to apply for parole.
[11]Stand down.
Lang J
Solicitors:
Kayes Fletcher Walker, Manukau J C Harder, Barrister, Auckland
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A
SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-092-8415
[2018] NZHC 471
THE QUEEN v
GANGANDEEP SINGH DHILLON
Hearing: 20 March 2018 Appearances:
G R Kayes and H Benson-Pope for Crown J C Harder for Defendant
Judgment:
20 March 2018
SENTENCE INDICATION OF LANG J
[1] Mr Dhillon faces four charges of aggravated robbery,2 one charge of robbery3 and one charge of burglary.4 He is due to stand trial on those charges in this Court on 8 October 2018.
[2] Mr Dhillon now seeks a sentence indication.5 This is an indication of the sentence that would be imposed in the event that he was to enter guilty pleas to all charges in the near future. The indication is given on the basis that, if it is not accepted, it will be for the trial Judge to assess Mr Dhillon’s overall culpability based on the evidence given at trial. The indication will therefore cease to be of any effect in the event that Mr Dhillon does not accept it.
The charges
[3] All of the charges arise out of a series of events that occurred between June and July 2017. Each of them involves Mr Dhillon being involved in either a burglary, a robbery or an aggravated robbery.
Burglary
[4] The burglary charge arises out of events that occurred on the evening and early morning of 22 and 23 June 2017. Late in the evening on 22 June, Mr Dhillon sent a text message to an associate, Mr Nuku, advising him of an address. Early the next morning, at Mr Dhillon’s request, Mr Nuku broke into that address and stole significant items of property. These included Samsung tablets, televisions, jewellery, handbags and suitcases. The summary of facts records that the television alone was worth approximately $12,000.
Aggravated robbery – Glasgow Avenue, Papatoetoe
[5] The first aggravated robbery charge was laid as a result of an incident that occurred in the early hours of Sunday 25 June 2017. The previous day, Mr Dhillon had received text messages from Mr Nuku asking him to confirm the registration
2 Crimes Act 1961, s 235(b); maximum penalty 14 years imprisonment.
3 Crimes Act 1961, s 234; maximum penalty 10 years imprisonment.
4 Crimes Act 1961, s 231; maximum penalty 10 years imprisonment.
5 Criminal Procedure Act 2011, s 61.
number of a vehicle that was to be stolen. Early the next morning Mr Nuku and an associate went to an address in Glasgow Avenue in Papatoetoe. They knocked on the door and woke two of the occupants, who let them in. Mr Nuku then went into another occupant’s room and presented a knife. He told that person to give him the keys to a motor vehicle or he would “put a knife through your stomach”. This person located the keys to a Volkswagen Passat motor vehicle and gave the keys to Mr Nuku. The occupants of the flat were then directed to remain in one room of the address while Mr Nuku and an associate searched the address for property to steal. They then stole one laptop computer and two cellphones. Whilst the search was taking place, the occupants were told that they owed money to “Gaggy”. They were also told that “Gaggy” had sent them there. “Gaggy” is Mr Dhillon’s nickname. The intruders then left, taking the vehicle with them. They later gave the vehicle to Mr Dhillon.
Aggravated robbery – Franklin Avenue, Papatoetoe
[6] The second charge of aggravated robbery was laid as a result of events that occurred three days later on 28 June 2017. On this occasion Mr Dhillon engaged four persons, including Mr Nuku, to rob an address in Franklin Avenue, Papatoetoe, occupied by a Mr Hapreet Singh. Mr Dhillon had apparently lived at that address earlier, and had been asked to leave after an argument with Mr Singh.
[7] At about 8.40 pm on 28 June 2017 four offenders, including Mr Nuku, went to the Franklin Avenue address in the Volkswagen Passat motor vehicle that had been stolen three days earlier. When they arrived, they confronted Mr Singh. Mr Nuku presented a knife at Mr Singh and demanded the sum of $20,000. It transpired that there were ten people at the address that evening. The occupants were directed into the lounge of the address, and Mr Nuku then took Mr Singh through each room in the house. During this episode, Mr Nuku held a knife to Mr Singh’s throat and demanded money. He also said that “Gaggy” had sent the intruders to the address.
[8] The intruders searched the address and took electronic items including laptop computers, tablets and cellphones. They instructed the owners of the cellphones to unlock and reset their phones. They also stole bank cards belonging to occupants of the address. Before they left the address, they instructed the owners of the bank cards
to write down pin numbers and passwords for their cards. In addition, they stole a set of car keys for a BMW motor vehicle from one of the occupants of the address.
[9] Mr Nuku then took Mr Singh back to the other occupants of the address in the lounge. He again demanded money from Mr Singh. When Mr Singh said he did not have any money, Mr Nuku punched him in the face.
Aggravated robbery – Cambridge Terrace, Papatoetoe
[10] The next charge of aggravated robbery relates to a robbery that occurred at an address in Cambridge Terrace, Papatoetoe. Mr Dhillon knew one of the occupants of that address, and had engaged in extensive text message communications with him about issues relating to a visa.
[11] On 24 June 2017 Mr Dhillon asked this person, Mr Sandhu, where he lived. Mr Dhillon then visited Mr Sandhu’s address. Approximately two weeks later, on 8 July 2017, Mr Dhillon engaged associates to rob this address. At 4.40 am on 8 July 2017, Mr Nuku and another person went to the Cambridge Terrace address. Mr Nuku forced his way into the address and went into a bedroom occupied by two persons. He woke these persons up and held out a knife. He told the male in the bedroom to follow him and give him the money otherwise he would kill him. Mr Nuku’s associate obtained a knife from the kitchen. Mr Nuku then began stealing electronic items, clothes and bank cards from occupants of the address. When one of them refused to hand over items, Mr Nuku said “I will kill you if you don’t”.
[12] During this episode cellphones and bank cards were taken. By 5 am that morning Mr Dhillon was at a petrol station in Takanini. There he used one of the bank cards stolen during the robbery to undertake a transaction in which he obtained goods to the value of $36.50.
Robbery
[13] The robbery charge was laid as a result of an incident that occurred on 10 July 2017. On this occasion Mr Dhillon went to a Mr Brar’s address in Gaynor Avenue, Mount Roskill. He said he would arrange for gang members to visit Mr Brar and
assault him if he did not give him money. Mr Brar said he didn’t have any money, but as a result of Mr Dhillon’s threats he allowed him to take a pair of shoes, gold earrings and a laptop computer from the address.
Aggravated robbery – Gaynor Avenue, Mt Roskill
[14] The next aggravated robbery charge was laid as a result of an incident that occurred three days later on 13 July 2017. On this occasion Mr Dhillon went back to Mr Brar’s address in Gaynor Avenue, this time accompanied by Mr Nuku. When they arrived, Mr Brar ran out of the address and hid in the garage. He left three flatmates inside the address. When Mr Nuku told one of these persons that he was going to steal the television, the person said he had to go upstairs to tell his flatmates. Mr Nuku responded by taking a knife out of his pocket and saying “No, you will stay in your seat”. Not surprisingly, the occupant of the address then sat back down.
[15] Two of the other occupants then began coming down the stairs of the address. Mr Nuku met them and presented his knife at them. He then demanded that one of those two persons give him his phone, but this person refused. Mr Dhillon then uplifted a television set from the lounge and left the address with Mr Nuku.
Starting point
Lead charge
[16] I consider the most serious charge to be that relating to the aggravated robbery of the Frankton Avenue address. I take this to be the lead charge because it involved four offenders entering a private home at night. It involved the use of threats in the form of the knife presented by Mr Nuku. It also involved actual violence that occurred when Mr Nuku punched Mr Hapreet Singh when Mr Singh told him he did not have any money. Furthermore, it involved the detention of no fewer than ten people, and resulted in significant property being stolen.
[17] The leading authority in relation to the starting point to be applied for charges of aggravated robbery remains the decision of the Court of Appeal in R v Mako.6 In
6 R v Mako [2000] 2 NZLR 170 (CA).
that case the Court observed that forced entry to premises at night by a number of offenders seeking money, drugs or other property where weapons are brandished will require a starting point of seven years or more even where no serious injuries are inflicted.7 Where the offenders entered a private house, the starting point would be increased under the home invasion legislation to around ten years imprisonment.
[18] The home invasion provisions are no longer in force. The entry by force into a private house will always, however, be an aggravating factor. I consider a starting point of not less than eight years imprisonment is appropriate for the charge relating to the Franklin Avenue address.
Uplift to reflect remaining charges
[19] The next issue is the extent to which the starting point should be increased to reflect Mr Dhillon’s culpability in relation to the remaining charges. Each of the other charges of aggravated robbery would, if standing alone, justify a starting point of at least seven years imprisonment. The burglary charge would justify a starting point of at least two years imprisonment. The robbery charge would justify a starting point at around the same level.
[20] It is obviously not appropriate to add cumulative sentences of that order to the starting point. Instead, the Court must apply totality principles to achieve an end starting point. In this context I have found the decisions of Toogood J and the Court of Appeal in the Vaeafesi cases to be instructive.8 Those cases involved similar offending in that they related to organised armed robberies of dairies and private dwellings. In all, the group carried out no fewer than eight aggravated robberies. The Crown appealed against a sentence imposed on one of the offenders who was the mastermind of the robberies. The sentencing Judge had taken a starting point of seven years imprisonment on the lead charge. Toogood J considered this to be at the very bottom end of the available range. Although lenient, however, it was not so far out of range as to amount to appealable error.9
7 At [58].
8 R v Kirk [2017] NZHC 673; Vaeafisi v R [2017] NZCA 545.
9 R v Kirk, above n 8, at [60].
[21] Toogood J was considering the sentence imposed on an offender who had masterminded six aggravated robberies. Toogood J concluded that an increase of at least six years was appropriate to recognise the remainder of the offending.10 That person had participated in at least one of the robberies, and had remained in cellphone contact with the other members of the group as they undertook the remaining robberies. In several of the robberies, a firearm had been presented. Toogood J therefore considered an overall starting point of 13 years imprisonment was appropriate to reflect the totality of the offending. Viewing his comments as a whole, however, I consider that he considered an appropriate starting point to have been around 14 years imprisonment because he considered the sentencing Judge had adopted a lenient approach in relation to the starting point for the lead charge.
[22] I consider the present offending to be slightly less culpable than that in Vaeafisi. First, Vaeafisi involved more aggravated robberies. It involved six such robberies, whereas the present case only involves four. Having said that, I acknowledge the Crown’s argument that all of the aggravated robberies in the present case occurred within private dwellings where some of the robberies in Vaeafisi occurred in dairies and other small commercial premises. Secondly, firearms were used in several of the robberies in Vaeafisi and this is a serious aggravating factor. Thirdly, the offenders in Vaeafisi were the instigators of the offending and they also remained in close contact with other members of the group as the robberies were carried out.
[23] In the present case, I consider Mr Dhillon to be the instigator of the offending. He also remained closely associated with it, as is demonstrated by the fact that he was in possession of the vehicle and one of the stolen bank cards shortly after two of the robberies had concluded. I accept that he did not direct the course of the robberies as they occurred. I have no doubt, however, that he knew Mr Nuku would use threats of violence to extort property from occupants of the addresses to be robbed. I have no doubt, either, that he knew Mr Nuku would be carrying with him a weapon of some sort. He was present at the final robbery at Gaynor Avenue when Mr Nuku produced a knife.
10 At [66].
[24] In those circumstances, I consider that an overall starting point of 12 and a half years is appropriate for all the offending. This means I would apply an uplift of four years six months to reflect the offending other than that relating to the Franklin Avenue robbery.
Aggravating factors
[25] The Crown suggests that a modest uplift should be applied to reflect the fact that Mr Dhillon was on bail when the offending occurred. He was on bail on a series of forgery charges relating to offending that occurred between January and August 2016. These apparently related to forged prescription forms. Although the fact that Mr Dhillon was on bail is an aggravating factor, I consider that the nature of the other offending is such that it would be inappropriate to apply an uplift.
Mitigating factor
[26] The only mitigating factor I am prepared to consider at this stage is that relating to guilty pleas. The Crown accepts that a discount of 25 per cent is appropriate. I would therefore apply a discount of three years two months to reflect that factor. Any other mitigating factors would be considered based on material provided at sentencing in the event that Mr Dhillon elects to enter guilty pleas.
Should a minimum term of imprisonment be imposed?
[27] The final issue relates to the imposition of a minimum term of imprisonment. The Crown submits a minimum term is required to reflect the sentencing principles of denunciation, deterrence and the need to hold Mr Dhillon accountable.11 A minimum term is not required to reflect the need to protect the community, because it is common ground that Mr Dhillon will be deported once he serves his sentence.
[28] In the ordinary course Mr Dhillon would be eligible for parole after serving approximately three years of his sentence. I consider that would be manifestly inadequate to reflect offending of such seriousness. It involved the planned robbery
11 Sentencing Act 2002, s 86(2).
of residential addresses using weapons at night. The distress the offending has caused to the victims is obvious from the victim impact statements I have read.
[29] I consider all three sentencing principles are engaged, and that a minimum term is necessary to reflect those factors. I acknowledge, however, that the minimum term should be reduced to reflect the fact that Mr Dhillon will be deported after he has served his sentence. I would therefore impose a minimum term of four years imprisonment.
[30] Mr Dhillon needs time to consider his position. His counsel should file a memorandum no later than 5 pm on Tuesday 27 March 2018 to advise the Court and the Crown whether Mr Dhillon proposes to accept the sentence indication. In that event he would be arraigned on Thursday 29 March 2018 at 9 am.
Lang J
Solicitors:
Kayes Fletcher Walker, Manukau J C Harder, Barrister, Auckland