R v Singh
[2022] NZHC 1188
•26 May 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-092-000619
[2022] NZHC 1188
THE QUEEN v
JASPAL SINGH
Hearing: 26 May 2022 Appearances:
L Radich for Crown
R M Mansfield and O W L Troon for Defendant
Sentencing:
26 May 2022
SENTENCING NOTES OF VENNING J
Solicitors: Kayes Fletcher Walker, Manukau
Counsel: R M Mansfield/O W L Troon, Auckland
R v JASPAL SINGH [2022] NZHC 1188 [26 May 2022]
[1] Jaspal Singh, you are for sentence in this Court as you have pleaded guilty to the attempted murder of Harnek Singh. The maximum penalty for attempted murder is 14 years’ imprisonment.
Background
[2] The victim, Harnek Singh, is a member of the Sikh religion, well known within the community as a commentator on politics and the Sikh religion in both New Zealand and around the world. He maintained a YouTube channel and radio station to express his views. His opinions about and criticism of aspects of the Sikh religion and politics in India polarised the Sikh community.
[3] You and your co-defendants were all known to each other through your attendance at a different Sikh temple. One of your co-defendants was the spiritual leader at the temple you attended. While you were not directly known to Harnek Singh you were aware of his views.
[4] A plan was formulated to kill Harnek Singh. You were enlisted to help in that plan. You and your co-defendants met on more than one occasion to discuss the plan prior to the attack on the evening on 23 December 2020.
[5] On that day, you and your co-defendants who physically took part in the attack, were armed with baseball bats and knives. You and the other defendants waited outside the victim’s temple for him to come out. The victim left his temple at about
10.09 pm to drive home.
[6] As he drove towards Papatoetoe, you began to follow his vehicle in your black Ford Ranger ute. You had previously replaced your license plates with stolen ones. You followed him through Papatoetoe and into Manurewa along Roscommon Road, where you were joined by two more vehicles. Just before the victim pulled into the driveway of his home his car was rammed by one of the other vehicles, forcing it off the road. At that stage you and the other five attackers got out of the three cars to attack the victim.
[7] The victim had locked his car door and used his car horn to attract attention. That led to the Police being called. But before they arrived, the driver’s side window of the victim’s car was smashed and you and your co-defendants attacked the victim, slashing and stabbing at him over his upper body and head. The victim was stabbed and cut 40 times to his arms, chest, neck and head area. Although the attack lasted less than five minutes the victim was badly injured and was left losing a large amount of blood.
[8] You left the scene in your Ford Ranger before the Police arrived. You withdrew from the attack after you dropped your knife and had suffered a cut to your own hand, probably the result of being stabbed by one of your co-offenders. The knife used by you was ultimately recovered by the Police and found to have your DNA on it as well as the victim’s blood.
[9] As soon as the Police arrived at the scene the victim was given emergency first aid, including a tourniquet to his arm which saved his life. He was then urgently transported to Middlemore Hospital in an ambulance.
[10] The injuries sustained by the victim were particularly serious. Initial emergency lifesaving surgery was required to address the multiple lacerations to his scalp and posterior neck and chest. Because of the urgency staples were inserted in those wounds. A right anterior chest wound was packed to stop further bleeding. A radial artery had to be repaired with a vein graft and the ulnar artery was ligated.
[11] After that emergency surgery to save his life the victim was transferred to the intensive care unit where he was stabilised. Three days later, on 26 December 2020, further surgery was required to address the multiple scalp wounds to his head, and repair the near amputation of an ear. Multiple wounds to his right upper back and neck and further facial lacerations and anterior neck wounds were repaired. Further wounds to his arms and hands were repaired.
[12] The victim required further major surgery on at least two later occasions. In the opinion of the specialist plastic surgeon treating the victim he is likely to suffer
significant long-term effects on the use of his upper limbs due to nerve injury and scar tissue, the recovery from both of which is likely to be incomplete.
[13] In his victim impact statement the victim has confirmed the impact on him. At the time of the assault he believed he was going to die. He effectively said his farewells to his family. He is now still, almost 18 months after the incident, badly affected. He has flashbacks to it. He becomes fatigued easily and a simple walk leaves him breathless. He has significant scarring to his body, head and face. He and his family are still afraid. They had to move house as they could no longer bear to live there. They have also suffered financial consequences. The impact on the victim of the injuries was profound and is ongoing.
[14] In arriving at your sentence, the Court is required to take account of the relevant purposes and principles of the Sentencing Act 2002. In your case the sentence must hold you accountable for the consequences of your offending and the harm done to the victim, and promote in you a sense of responsibility for that harm. The sentence should also denounce and deter such violent and dangerous conduct. There is no place for such actions in our society. The Court also has to consider your rehabilitation and reintegration into society at the conclusion of your sentence.
[15] As to the principles of sentencing, the Court is directed to take into account the gravity of the offending in this particular case, including the degree of your personal culpability. The Court is directed also to impose a penalty near the maximum for the offence if the offending is near to the most serious of cases for which the penalty is prescribed, unless your circumstances would make that inappropriate.
[16] The Court is directed to take into account the information before it concerning the effect of the offending on the victim, which I have outlined. The effect of your offending on the victim in this case must now be very apparent to you.
[17] Other relevant principles in this case include the general desirability of consistency with sentencing levels in similar cases.
[18] In determining the gravity of the offending and your culpability it is necessary to take into account the aggravating features of this offending. There are several aggravating features in your case:
(a)First, planning – you and your co-defendants were all members of the same temple. You deliberately targeted the victim to kill him. The attack and use of the weapons was planned in some detail and over some time. There was a concerted plan to follow and immobilise the victim’s car and then to attack and kill him. I accept however, and as the Crown acknowledge, that you were not the ringleader or the mastermind as has been referred to behind the plan.
(b)Extreme violence – I accept the Crown submission this was a particularly vicious attack. As noted, over 40 stab wounds were inflicted on the victim.
(c)The attack included multiple blows and stabs to the neck and head of the victim.
(d)There were six physical attackers.
(e)The weapons included knives, which were used with the intention of inflicting fatal injuries on the victim.
(f)The seriousness of the injuries inflicted are also relevant. As I have said, were it not for the tourniquet applied by the police officer at the scene the victim would have bled out and died. The victim will be permanently affected by the injuries you and the others inflicted.
[19] There is a further concerning aspect to the offending. It appears to have been motivated by religious extremism, or at the least, a violent and completely disproportionate reaction to opposition to the views expressed by the victim.
[20] The Crown submit the Court should take a starting point of between 12 and 13 years’ imprisonment in your case. Mr Mansfield QC has argued strongly for a starting point of nine and a half years.
[21] In arguing for that starting point of nine and a half years Mr Mansfield submitted that the guidance set by the Court of Appeal in R v Taueki should apply to the approach to sentencing for attempted murder.1 He submitted that, while your offending fell into band 3 of Taueki (which is nine to 14 years) it sat at the lower- middle of that band.
[22] While the Court acknowledges that the guidelines in Taueki are a helpful consideration, that case involved a charge of causing grievous bodily harm. There is an additional feature of the charge of attempted murder which is important and which should not be overlooked. Attempted murder requires the formation of an actual intent to kill.
[23] Both counsel referred to a number of cases involving sentences for attempted murder.2
[24] The Court has considered the cases referred to by the Crown and Mr Mansfield. Each case of course must turn on its own facts. A number of the cases cited by Mr Mansfield are distinguishable on one or more factors. For example, in R v Pona, R v Ae and R v Pengelly there was only one attacker.3 In R v He and R v Doonan & Maddock, while there was more than one attacker the offending seemed largely unplanned.4 He involved a confrontation between two antagonistic groups.
1 R v Taueki [2005] 3 NZLR 372 (CA).
2 R v Ae [2016] NZHC 965, citing R v Pengelly [2013] NZHC 527; R v Falani [2014] NZHC 1879; R v Craw HC Auckland CRI-2005-057-000018, 7 June 2006; R v Taani [2019] NZHC 1746; R v Tapaevalu [2019] NZHC 1867; R v Tipuia HC Auckland CRI-2005-092-002219, 22 March 2005; R v Williams [2017] NZHC 427; R v Falani [2014] NZHC 1879; R v Hadfield CA337/06, 14 December 2006; Farley v R [2017] NZCA 97; R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298; R v Boyle [2019] NZHC 1584; Enoka v R [2018] NZCA 185; Piao v R [2020] NZCA 607; Chea v R [2016] NZCA 207; Keown v R [2010] NZCA 492; R v Tamou [2008] NZCA 88; Paora v R [2021] NZCA 559; Parata v R [2017] NZCA 48; Moses v R [2020] NZCA 296; R v Ae, [2016] NZHC 965; R v Pona HC Auckland CRI-2006-092-2531, 13 March 2007; R v He HC Auckland CRI-2003-004-025672, 29 April 2005; R v He CA 169/05, 28 October 2005; R v Doonan & Maddock HC Auckland CRI-2006-044-8749, 22 August 2008; Hohipa v R [2015] NZCA 485; R v Brown [2002] 3 NZLR 670;
3 R v Pona; R v Ae; and R v Pengelly, above n 2.
4 R v He; and R v Doonan & Maddock, above n 2.
[25] Similarly however, I accept Mr Mansfield’s submission that the Crown’s reliance on R v Taani is overstated.5 That involved a murder and attempted murder with the use of firearms against the background of gang violence and drug dealing. R v Williams involved a prison attack.6 The case of R v Falani is also quite different.7 Falani stabbed the victim while he was fighting with his brother.
[26] While, as I have said, all cases are different perhaps the closest is a case of R v Tipuia, which involved the attempted murder of a 13 year old victim known to the defendant.8 For some reason Mr Tipuia took against the victim. Mr Tipuia lured the victim to an area under a bridge, placed a blindfold on the victim under the pretext it was a game, then tried to break his neck. Mr Tipuia and his associates then began punching and kicking the victim with steel cap boots, and threw rocks at his head. Mr Tipuia then used a Stanley knife to slash the victim’s throat. The victim was left to die. Although the planning was limited and the attack somewhat random, the Court took a starting point of between 12 and 13 years. In Tipua there was limited planning, (certainly much less than involved in the present case), but it also involved multiple attackers, attacks to the head and the use of a knife, all of which are features in the present case.
[27] In your case, having regard to the aggravating circumstances of the offending, and while acknowledging that you were not the ringleader, the Court takes as a starting point 12½ years’ imprisonment. Testing the start point by considering Taueki,9 I am satisfied that with the aggravating features I have identified this attack properly falls towards the top of band 3 from that case.
[28]I then have regard to your personal aggravating and mitigating factors.
[29] The pre-sentence report discloses your family has been in New Zealand for a number of generations. You suffered violence at the hand of your father, particularly
5 R v Taani, above n 2.
6 R v Williams, above n 2.
7 R v Falani, above n 2.
8 R v Tipuia, above n 2.
9 R v Taueki, above n 1.
after he had been drinking. You also had a problem with alcohol related offending when you were younger.
[30] Although you have a number of past convictions for violence, including assault, threatening to kill and possession of offensive weapons, the last offending was in 2011 when you were 30 years old. You are now 41 years old. The material put before the Court on your behalf suggests that since 2011 you have taken a number of positive steps to turn your life around and your religion has been important to you in enabling you to achieve that. Prior to this latest incident, you had a settled family life and business. You also had addressed the previous issue you had with alcohol.
[31] In addition to the pre-sentence report Mr Mansfield has provided the Court with a report from Jagjiwan Singh to provide some background on Sikh culture and the community you live in. He has also provided an affidavit from Mr Dalpreet Singh, your accountant, who acts for your transport company and is a director of the company. He will continue to support and operate the company while you serve your sentence. Dalpreet Singh also provided insight into your background. There are also letters of support from Khushbir Singh, a senior contract engineer, a man respected in the community, and Daljit Singh, a spokesperson for the Supreme Sikh Society of New Zealand. You are also supported by members of your family who remain close to you. You are fortunate to have that support.
[32] In the circumstances, and given the steps you have taken to turn your life around, I do not propose to uplift the starting point for the past offending in your background. However, as Mr Mansfield has acknowledged, nor can there be any credit for good character as such, despite your recent contributions to the community, including your involvement with a community food truck, for example.
[33] Since your arrest, you have made a full admission of your involvement. You are entitled to a reduction in your sentence of 30 per cent for that.
[34] Next, there is your guilty plea. The allowance for that must be tempered by the fact it was not entered at the earliest stage and that the Crown case against you was perhaps stronger than against some of your co-defendants, given the location of the
knife with your DNA on it inside the victim’s car. I am satisfied you are entitled to a 17½ per cent discount for the guilty plea. Although Mr Mansfield did not expressly seek a further reduction for remorse, I also allow an additional seven and a half per cent for a number of factors, including remorse and the positive personal aspects I accept are confirmed by the reports I have referred to. There are positive prospects for your rehabilitation on your release, and I do accept that your expressions of guilt and regret in the pre-sentence report towards the victim are genuine.
[35] However, I reject Mr Mansfield’s submission there should be any further discount to reflect cultural and religious factors which he argued could have influenced your involvement in the offending. As noted earlier, the fact the offending was motivated by objection to what the victim was saying is frankly more of an aggravating feature than a mitigating one. Nor can I accept there should be a reduction for the fact you may have been influenced by others. You are a mature adult and were an active and willing participant in the attack.
[36] Totalling the credits available to you leads to a reduction of 55 per cent from the starting point I identified. In addition I allow a further four and a half months for the time you have spent on the 24 hour, electronically monitored curfew, the majority of which was away from your home and business.10 That leads to an end sentence of five years, three months’ imprisonment.
[37] I have considered whether a minimum non-parole period should be imposed because of the violence involved in this attack. On balance I do not consider a minimum non-parole period to be necessary given your age and the steps that you have taken prior to this incident to turn your life around. I also take into account your acceptance of responsibility and the full admission of your involvement. It will be for the Parole Board to determine when you should be released.
[38]Mr Singh please stand.
10 Applied at this stage, as in Moses v R, above n 2, at [48].
[39] For the attempted murder of Harnek Singh, you are sentenced to imprisonment for five years, three months. Stand down.
Venning J
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