R v Singh

[2024] NZHC 491

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-092-619

[2024] NZHC 491

THE KING

v

JOBANPREET SINGH

Hearing:

8 March 2024

Appearances:

JAE Tausi and L A Taula for the Crown

P J Kaye and E M Greeson for the Defendant

Sentencing:

8 March 2024

SENTENCING NOTES OF WOOLFORD J

Solicitors:           Kayes Fletcher Walker (Office of the Crown Solicitor), Manukau

Counsel:            P Kaye, Auckland

E M Greeson, Auckland

R v SINGH [2024] NZHC 491 [8 March 2024]

Introduction

[1]                  Jobanpreet Singh, you appear for sentence today having been found guilty of the attempted murder of Harnek Singh after a six-week jury trial in the Auckland High Court. The maximum penalty for attempted murder is 14 years’ imprisonment.1

Background

[2]                  The victim in this matter is Harnek Singh, who resides in  Manurewa.  Harnek Singh is a member of the Sikh religion and is well known within the community as a person who commentates on politics and the Sikh religion in both New Zealand and around the world. Harnek Singh runs a popular YouTube channel and radio broadcast where he shares his views. He is a polarising figure in the Sikh community. You did not know the victim personally but were aware of his views.

[3]                  You and your co-offenders attended a local Sikh temple in East Tāmaki. Gurinderpal Brar was the spiritual leader of the temple. Gurinderpal Brar inspired devotion and obedience from his congregation, but more so from his inner circle, known as devotees.

[4]                  In the lead up to the attack, Gurinderpal Brar was angry with Harnek Singh’s commentary on Sikh politics and religion. Gurinderpal Brar sought assistance from members of his inner circle at the temple to kill Harnek Singh.

[5]                  About one week before the attack, Gurinderpal Brar approached Jaspal Singh as a possible recruit. He set out his plan to perform a "hit" on Harnek Singh just before Christmas saying he "needed Harnek gone". Gurinderpal Brar sourced a bag of weapons, including knives and bats, and stolen number plates to be fitted onto a vehicle used in the attack.

[6]                  On 23 December 2020, Gurinderpal Brar directed Jaspal Singh to drive to Harnek Singh’s workplace and pointed out his vehicle, a red ute. Gurinderpal Brar told Jaspal Singh that the “job” was to happen that night. At about 6 pm, Jaspal Singh returned to the temple and met with Gurinderpal Brar and Sarvjeet Sidhu.

1      Crimes Act 1969, ss 173 and 66.

Gurinderpal Brar instructed Jaspal Singh and Sarvjeet Sidhu to see the plan through and gave them the bag of weapons and stolen number plates. That night, you met with Jaspal Singh and Sarvjeet Sidhu in Papatoetoe. You helped switch the number plates on Jaspal Singh’s black Ford Ranger before driving to the temple where Harnek Singh conducted his broadcasts and there you waited for him to leave.

[7]                  Harnek Singh left work at approximately 10.09 pm and began driving home. He was followed by you, Jaspal Singh and Sarvjeet Sidhu in the Ford Ranger being driven by Jaspal Singh and were soon joined by a white Toyota HiAce van, driven by Hardeep Sandhu, and a white Toyota Prius, driven by two other members of your temple.

[8]                  Harnek Singh did not notice the three vehicles following him and continued to his home address. As he pulled into his driveway, Hardeep Sandhu used the Toyota HiAce van to ram Harnek Singh’s ute off the road and come to a stop with the Ford Ranger to one side and the Toyota HiAce van to the other. You, Jaspal Singh and Sarvjeet Sidhu got out of the Ford Ranger and began your attack on Harnek Singh.

[9]                  You and your co-offenders smashed Harnek Singh’s driver window and attacked him through it. Together you used knives to slash and stab him over his upper body, inflicting 40 wounds to his arms, chest, neck and head over a period of less than five minutes. During the attack, Harnek Singh used his vehicle’s horn to alert his neighbours who called Police.

Impact on the victim

[10]              Police attended the scene and gave Harnek Singh emergency first aid, including a torniquet to his arm. He was urgently transported to Middlemore Hospital in an ambulance.

[11]              Absent the application of a torniquet by Police responders, Harnek Singh would have bled out and died at the scene. His injuries were extensive. During the initial surgery, multiple lacerations to the scalp, posterior neck and chest were temporarily stapled; a right anterior chest wound was packed to stop bleeding; the radial artery was repaired with a vein graft and the ulnar artery was ligated. Further

damage was identified by CT scan. Harnek Singh underwent multiple surgeries and is likely to suffer significant long-term effects on the use of his upper limbs due to nerve injury and scar tissue. It is unlikely he will make a full recovery.

[12]              Harnek Singh’s victim impact statement was read aloud today by Crown counsel, as provided by the Victims’ Rights Act 2002. I want to also summarise its message here.

[13]              Harnek Singh’s description of your attack is harrowing. He describes being trapped in his car while a gang of people stabbed him “uncountable” times. He says that he was certain he would die and mentally said goodbye to his wife and son. He was terrified and went into shock. When he regained consciousness, he was beset by excruciating pain and had to undergo many surgeries. He received over 350 stitches to his head and upper body. During his recovery, he was unable to feed himself or stand up without assistance. Apart from the physical pain, Harnek Singh also lost his independence. He had been the primary earner for his young family and was rendered unable to work for a long period following the attack.

[14]              Even though the acute danger of his injuries has passed, Harnek Singh describes feeling fear and uncertainty about his future and that of his family. He fears for his safety and theirs, as do the family’s friends and colleagues. Harnek Singh worries about the lasting mental impact of the attack on his teenage son and his wife, who, like him, are blameless. He says that his family has been transformed by the experience.

[15]              Despite this, Harnek Singh says that he tries to encourage himself and his family to return to their everyday lives and live without fear. He expresses faith in the New Zealand justice system and his right to express his religious views without persecution. I will quote from his statement directly now:

You came to kill me. You wanted to take me away from my family. You tried to silence me. You wanted to send a chilling message to all those who express their disagreement with your unorthodox religious views. But you failed. I am standing alive in front of you. I will continue to express my opinions and beliefs as I always have. The only chilling message you have managed to send is to people with the same views and opinions as yours that actions have

consequences and that in a country like New Zealand, the law does not bend for you if your wrongful acts are in the name of God.

Personal circumstances

Pre-sentence report

[16]              A pre-sentence report has been provided to the Court. It details your personal circumstances and gives recommendations as to your sentence.

[17]              You are 27 years old. You were born in Patna, India, and lived there until you were one and a half years old, after which you were raised in Punjab following the death of your father. Your mother returned to Punjab to your father’s family home, and you were raised with your grandparents. Your mother remarried, to your paternal uncle. You reported that your childhood was bad due to your stepfather’s attitudes and actions. Your mother passed away in 2007 — from then, you were in your grandparent’s care, along with your half-brother and sister.

[18]              In 2015, you came to New Zealand on a student visa, which expired prior to your arrest. You reported you would like to go back to India as your grandfather is all that you have left. You have been in a relationship for three and a half years and your partner is your main support.

[19]              The report advises that you attended Edenz College and completed a level 5 certificate in business management. Prior to your remand in custody, you worked under the table for a friend, loading and unloading Countdown delivery trucks.

[20]              The report states that, while you admit being involved in the incident, you deny that you are one of the perpetrators who actively stabbed the victim. You reported that you were trying to stop your co-offenders from going through with the plan. You stated that your religion does not allow you to cause harm to others.

[21]              You reported feelings of depression and stated that you have not been diagnosed as you were too afraid to go to the doctors, due to your immigration status. The report stated that you were very emotional during your interview.

[22]              The report assesses you as having a low risk of reoffending as this is your first appearance before the Court. Your risk of harm is assessed as moderate to high, based on the risk of harm to the victim given the nature of the offending. The report recommends a sentence of imprisonment.

Section 27 cultural report

[23]              A cultural report was also provided, authored by Anjeet Singh, a barrister and cultural report writer. The report addresses your personal, community and cultural background and was compiled from interviews with yourself and your family and friends.

[24]              The report describes a difficult childhood. When you were two years old, your father passed away in an accident while travelling home. After your father’s death, your mother moved to Punjab and married your uncle. Your half-brother, through your mother’s second marriage, was born severely ill. Although you loved your brother, you felt that your mother was constantly preoccupied with taking care of him. Your mother was diagnosed with cancer when you were 10 years old and passed away in 2007. You described the absence of your mother leading to feelings of abandonment, insecurity and instability. You also experienced severe financial circumstances as a result of your mother and brother’s medical bills.

[25]              In 2015, you moved to New Zealand on a student visa with the intention of building a better life for yourself. This was also to improve the dire financial position of your family, which came about as a result of having to borrow money to cover the medical expenses of your mother and brother. Upon arrival in New Zealand, you enrolled in a level 5 business diploma. However, your education was continually disrupted and eventually, this led to Immigration New Zealand declining your student visa. Further, you had trouble securing employment and fell into financial hardship.

[26]              The report detailed your good character as attested to by your family and friends through their interviews. You were described as soft-hearted, service-oriented and compassionate. The report also records that you found solace in seva, or selfless service performed without the expectation of personal gain, and that this helped you escape thoughts of your hardships in life.

[27]              As to the offending, you maintained that you had no prior knowledge and no part in the planning and execution of the attack on the victim. You advised the writer that you would not have acted on instructions from anyone to harm the victim. You described yourself as having been “framed” for attacking the victim.

Psychological report

[28]              I have also been given a psychological report. It considers whether there are any psychological factors which bear upon your offending.

[29]              The report writer acknowledged that, during this time, you have experienced “depressive symptoms and anxious distress”. However, the report did not find your mental health status to be linked to the offence committed, due to your consistent denial that you had committed the offence of which you have been convicted. The report writer raised the possibility that the influence of anti-social peers and a propensity for violence could be “linked to your past trauma and negative feelings from life dissatisfaction”.

[30]              The report writer observed that you are an individual with strong beliefs about yourself and your life, incongruent with violent offending. The report writer further considered that there may be an internal conflict impacting your perception of your offending and the lack of acceptance of your involvement.

Approach to sentence

[31]              Sentencing is undertaken by a two-step process as outlined by the Court of Appeal in Moses v R.2 At the first step, I must set an adjusted starting point for your offending by incorporating the aggravating and mitigating features of the offending. At the second step, I will consider all aggravating and mitigating factors that are personal to you as the offender.

[32]              I must also consider the purposes of sentencing under s 7 of the Sentencing Act 2002. Relevant to your offending is the need to hold you accountable for harm done

2      Moses v R [2020] 296, [2020] 3 NZLR 583 at [46].

to the victim and to promote in you a sense of responsibility for that harm.3 I must also denounce your conduct and deter you or others from committing the same offence.4 I consider also that the protection of the community is highly relevant given the nature of your offending.5

[33]              I must also take into account the gravity of your offending, your degree of culpability as against your co-offenders and the desirability of consistency with sentencing in similar cases.6 Further, I must consider the effect of the offending on the victim and, where the offending is identified as being amongst the most serious of its kind, impose the maximum penalty prescribed by statute.7

Submissions

Starting point

[34]              The Crown submits that the starting point for your offending should align with that adopted by Venning J in R v Singh, with respect to your co-offender, Jaspal Singh.8 I adopted Venning J’s approach when sentencing your co-offender, Sarvjeet Sidhu.9 Venning J identified the aggravating features of the attack as follows:10

(a)Planning and premeditation. All the offenders were members of the same temple. The victim was specifically targeted. The attack and use of weapons was planned in some detail over a period of time. A concerted plan was devised to follow and immobilise the victim in his vehicle so that he could be attacked and killed.

(b)Extreme violence. The attack was particularly vicious and involved over 40 stab wounds to the victim.

3      Sentencing Act 2002, ss 7(1)(a) and (b).

4      Sections 7(1)(e) and (f).

5      Section 7(1)(g).

6      Sections 8(a) and (e).

7      Sections 8(f) and (c).

8      R v Singh [2022] NZHC 1188 9 R v Sidhu [2023] NZHC 3406. 10 At [18].

(c)The attack included multiple blows and stabs to the neck and head of the victim.

(d)There were several physical attackers.

(e)The weapons included knives, which were used with the intention of inflicting fatal injuries on the victim.

(f)The injuries were gravely serious. A tourniquet was applied by a police officer at the scene, without which the victim would likely have died. The victim will be permanently affected by his injuries.

[35]              Following consideration of the aggravating factors of the offending, Venning J adopted a starting point of 12 years and six months’ imprisonment.

[36]              The Crown submits that there is no reason to distinguish your offending from that of Jaspal Singh. On the facts, you, Jaspal Singh and Sarvjeet Sidhu were in the Ford Ranger as it followed the victim on the night of the attack. It further submits that you played similar roles in the attack, first by attempting to break the windshield of the victim’s ute and then attacking him through his driver’s window.

[37]              Your counsel, Mr Kaye, agrees that this starting point is within the appropriate range, acknowledging that it is generally desirable to be consistent in sentencing, especially in the case of party offending.

[38]              Mr Kaye does, however, raise issue with statements in your pre-sentence report. Mr Kaye notes that you were interviewed without a Punjabi interpreter, and that you are not fluent in English. The presence of an interpreter would have ensured that you fully understood the questions you were asked and recorded accurate responses around key considerations of the offending. Mr Kaye says that you continue to dispute that you were present at the scene of the offending and directs the Court to where you have stated this in the cultural report and the psychological report. You maintain that you were not involved with the planning of the offence and you did not personally stab the victim.

Personal mitigating circumstances

[39]              The Crown submits that there are no available discounts for personal mitigating factors. While you are reasonably young, having been 24 years old at the time of the offending, you were at the upper limit of what can be described as ‘youth’. The Crown further submits that your offending is not of the kind to attract a discount for youth, as it was not driven by factors associated with youth offending such as immaturity and impulsivity.11 As to previous good character, the Crown acknowledged your lack of previous convictions, but maintains that your attitudes since the offending do not speak to this incident as being a brief break from an otherwise sound character which would warrant a discount. In summary, it submits a discount of no more than 10 per cent may be available for your personal mitigating factors to be deducted from a starting point of 12 and a half years’ imprisonment.

[40]              Mr Kaye takes a different view, submitting that your age at the time of the offending is material to sentencing and should be taken into account. Mr Kaye submits that your age is relevant as it made you more vulnerable and susceptible to “the laudits of religious thinking and fervour” around you, particularly as you have no family support in New Zealand.

[41]              Further, Mr Kaye submits that a discount in the range of 10 to15 per cent is appropriate for the insights into your offending and background characteristics as provided in the cultural report and psychological report.

[42]              Mr Kaye also submits that you are entitled to a 10 per cent discount for previous good character, with reference to the case of the Court of Appeal in R v Hockley.12 A further 10 per cent is submitted as appropriate on the basis of character references which purport to show your ethical and responsible nature as well as your voluntary work and community contributions.

[43]              Mr Kaye noted that you pose a low risk of re-offending, per the pre-sentence report, and submits this, and the prospect of your rehabilitation, should entitle you to

11     Counsel cites R v Mahoni (1998) 15 CRNS 428 (CA) and Wiseman v R [2018] NZHC 1684 for the proposition that relevant youth offending involves these factors.

12     R v Hockley [2009] NZCA 74 at [30].

a further discount of five per cent. In summary, he submits that discounts totalling  25 to 30 per cent are available.

[44]              Mr Kaye further submits that you are entitled to a reduction in sentence for the approximately two years spent on electronically monitored bail which restricted your freedom of movement and association.

Discussion

[45]              Looking to the starting point, I first note that the offending is gravely serious on the face of it. The attack on the victim was vicious and life-threatening. It was premeditated and the victim was particularly vulnerable. It was additionally serious because the attack was motivated by religious and possibly political views.

[46]              In your case, Mr Singh, the jury were satisfied beyond reasonable doubt that you were present at the scene of the offending and part of the attack on Harnek Singh together with Jaspal Singh and Sarvjeet Sidhu. The jury rejected your alibi defence. However, I am entitled to interpret the facts subject to this finding. I am mindful of the fact that, unlike Jaspal Singh or Sarvjeet Sidhu, you were not at the meeting with Gurinderpal Brar where he gave them the instructions for and the weapons to be used in the offending. Further, there was no forensic evidence  against  you  such  as Jaspal Singh’s DNA found on a knife used in the attack. Unlike your co-offenders, there was also no evidence of any cuts or wounds on you for which you required assistance after the offending, as sought by Jaspal Singh and Sarvjeet Sidhu. Although I must still sentence you on the basis that you were part of the attack on Harnek Singh, I am prepared to do so, recognising that your role was more limited than Jaspal Singh and Sarvjeet Sidhu, particularly in the physical aspect of the offending. I acknowledge that there is no evidence before me to indicate whether your more limited participation in the offending can be attributed to lack of opportunity, being mindful that the victim was trapped in his vehicle and there was one access point to him, being the broken driver’s window or something else. However, the facts indicate that your participation was lesser than that of your co-offenders.

[47]              In these circumstances, it is appropriate to adopt a slightly lower starting point of 11 years and six months’ imprisonment. Notwithstanding the starting point of

12 years and six months’ imprisonment adopted in the sentencing of your co- offenders, I am minded to distinguish your role in the offending in several important respects, as I have outlined.13

[48]There are no mitigating features of the offending.

Personal mitigating factors

[49]              Turning now to personal mitigating factors, a youth discount is not available. You were 24 years old at the time of the offending and had been in New Zealand for five years. You were involved in extremely serious offending with multiple offenders, which was highly premeditated, where the intention was to kill another person.

[50]              Your counsel, Mr Kaye, has further submitted that a discount in the range between 10 to 15 per cent is available for the factors identified in your cultural report and psychological report. Mr Kaye submits on the basis that these reports provide insight into your particular vulnerability and susceptibility to Gurinderpal Brar’s influence. This is particularly compounded by the fact that you had no family support in New Zealand, beyond your partner. I accept that some discount is appropriate on this basis. Your cultural report noted that you lost both parental figures at a young age. It is against this background — where your childhood was defined by absence of key parental figures — that you encountered Gurinderpal Brar and were influenced by him both as a religious leader and an authority figure. I accept that these factors, alongside your very devout nature, made you particularly vulnerable and impacted your decision-making leading up to and during the offence. I am prepared to grant you a discount of 15 per cent for these factors.

[51]              As to previous good character, I acknowledge you have no previous convictions.14 You have provided references which speak to your good character, as well as the contributions you have made to society in a positive manner through community work or seva. The Sangat New Zealand Trust has submitted a letter to this

13 In Uhrle v R [2015] NZCA 412, the Court of Appeal found it appropriate that the sentencing Judge adopted a lower starting point on the basis of Ms Uhrle’s limited involvement with the most violent phase of the offence, being the physical act: see [137].

14 R v Hockley, above n 12, at [30].

effect. However, the evidence of these positive contributions is presented, largely, by the organisation linked to the offending. It is also the basis for the connection between you and the co-offenders. The psychological report highlighted the influence of anti- social peers, namely, your co-offenders. The references are also at odds with messages you sent after the attack in which you spoke enthusiastically about burning down the victim’s house when his funeral would be taking place and said “We might let his son alive with mercy but won’t let his wife alive. She’s a bitch.”  In those circumstances, I do not consider it appropriate to grant a discount for good character.

[52]              I do not consider a discount for the low risk of reoffending or the prospects of rehabilitation to be available either. Again, I recognise that you have no previous convictions which reduces your risk of reoffending. Further, I understand that you have been served a deportation notice which will likely come into effect upon conclusion of your sentence. However, your continuous denial of being involved in any part of the offending speaks to low prospects of rehabilitation as you have expressed no remorse and taken no responsibility for your role in the offending.15 You gave evidence that you were not present at the scene of the offending and called alibi to that effect, which was plainly disbelieved.

[53]              However, I accept counsel’s submissions that a further discount is available for your time spent on electronically monitored bail and that this was reasonably restricted. I find a reduction of nine months’ imprisonment is appropriate. That means from a starting point of 11 and a half years’ imprisonment, I give you both a discount of 15 per cent for personal mitigating factors and a reduction of nine months for the time spent on electronically monitored bail.

15     Sentencing Act, s 7(1)(a) and (b).

Result

[54]Mr Jobanpreet Singh, would you please stand.

[55]On the charge of attempted murder, I sentence you to nine years’ imprisonment.

Woolford J