R v Singh

[2012] NZHC 2749

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-5450 [2012] NZHC 2749

THE QUEEN

v

AMANDEEP SINGH Charges:  Indecent assault; Male assaults female Plea:    Guilty

Counsel:         AR Longdill for Crown

SD Cassidy for Prisoner

Sentenced:     19 October 2012

Indecent assault – 2 years 5 months’ imprisonment

Male assaults female – 6 months’ imprisonment

SENTENCING NOTES OF BREWER J

SOLICITORS

Meredith Connell (Auckland) for Crown

Public Defence Service (Auckland) for Prisoner

R V SINGH HC AK CRI-2012-092-5450 [19 October 2012]

Introduction

[1]      Mr Singh, on 29 August 2012 you pleaded guilty to one count of indecent assault and one count of male assaults female.   I will summarise the factual background as follows.

Facts

[2]      On 14 February 2012, at about 6:30pm, the two complainants, (I will refer to them as “Miss MR” and “Miss SP”), both aged 15, were walking along a bush track in the Manurewa Botanical Gardens.   They are both in Court today.   They are obviously young girls and you told the probation officer, of course, that you knew they were young.

[3]      You were hidden in the bushes and when the complainants walked past you called out “are you girls tired?” They responded, “yes”, and continued walking. You walked  out  of  the  bushes  and  grabbed  Miss  SP’s  bottom.    The  complainants increased their walking pace but you pursued them.

[4]      You grabbed the girls by their shoulders and spun them around towards you. Miss MR managed to break free.  You attempted to punch Miss MR while she was trying to pull Miss SP from your grasp.  She avoided the punch and ran away to seek help.  You continued to hold onto Miss SP, rubbing your groin against her backside. You then threw her onto the ground, causing her to hit her head.  You put your arm across her throat, making it difficult for her to breathe.  You put your hand under her top and under her bra.   You grabbed and squeezed her breasts while licking and kissing her face and lips.

[5]      Miss SP tried to scream but you covered her nose and mouth with your hand. With your other hand, you rubbed her genital area over the top of her jeans and attempted to put your hand down the front of her jeans.   All the while you were continuing to kiss and lick her face.

[6]      At one point, you bit Miss SP on her cheek causing her face to swell and leaving a bruise.

[7]      Miss  SP was  terrified  and  struggled  to  get  free.    While  doing  this,  she managed to punch you in the face.  Your response was to let her go momentarily and then to punch Miss SP on the right side of her face.  Miss SP managed to get up but you grabbed her again.  Again Miss SP fell to the ground.  Miss SP got up again but you blocked her exit, opened your arms, yelled “come here”, and wrapped her in a bear hug type grip.  Miss SP was still struggling, managed to break free from you and started running.  You said to her “you better run before I hurt you”.  Miss SP then made her escape.

[8]      In her victim impact statement, Miss SP said that at the time you put your hand over her mouth and nose she could not breathe and thought she was going to die.   Her jaw was so painful that a couple of days after the incident she went to hospital to have an x-ray to confirm that the jaw was not broken.  However, her jaw was still uncomfortable as at 4 October 2012 when the victim impact statement was signed.  Miss SP was affected emotionally.  She is scared to walk by herself, could not concentrate at school, became angry for no reason and was emotionally up and down.  Fortunately, she describes herself as slowly improving.

[9]      Miss MR was also affected emotionally.  You have seen her in Court today and heard her read her victim impact statement.  She said it took her a month before she could sleep alone or near a window.  Her school work was affected but with the assistance of a counsellor she began to feel comfortable again after about four to five weeks.

Lead offence

[10]     The charge of assault by a male on a female carries a maximum penalty of two years’ imprisonment.  The charge of indecent assault carries a maximum penalty of seven years’ imprisonment, and so I treat that as the lead offence in sentencing you today.

[11]     The charges in the indictment do not specify which of the assaults each count relates to.  Counsel are agreed that the count of assault on a female should relate to the part of the incident where you attempted to punch Miss MR by swinging with a closed fist at her head.   They are also agreed that the charge of indecent assault should relate to the part of the incident where you rubbed Miss SP’s genital area whilst covering her nose and mouth with your hand and kissing and licking her face. Overall this makes no difference to the sentencing outcome because the other parts of the incident I have described form part of the overall circumstances of your offending.

Purposes and principles of sentencing

[12]     When sentencing you today, I must take into account the principles provided for under the Sentencing Act.[1]   These include the need to hold you accountable for the   harm   done   to   the   victims,   promote   a   sense   of   responsibility   and acknowledgement for the harm that you have caused, denounce your conduct and deter others from causing similar harm in the future.   I must take into account the need to protect the community from offenders like you, but at the same time I have to sentence you in a way that will assist in your rehabilitation and reintegration into the community.  Your sentence must be consistent with sentences received by others

for similar offending, taking into account the seriousness of the offences and the gravity of your offending.  That is why the lawyers today have referred me to cases which have been decided in the past which they say are similar to your case.

Sentencing structure

[1] Sentencing Act 2002, ss 7 and 8.

[13]     When a Judge sentences someone for serious offending, what he or she does is fix a starting point to the lead charge which takes into account all the factors relating to the offending itself.  That starting point is then adjusted up or down to take into account factors which are personal to the offender.  In that way the final

sentence is reached. That is what I will do in your case.

[14]     The Crown considers that the aggravating parts of your offending are the use of violence, the skin on skin contact, the persistence of your actions in the face of active resistance, and the harm caused to your victims.  I agree.

[15]     The  Crown  has  submitted  to  me  that  your  starting  point  should  be  set between three years and three-and-a-half years’ imprisonment.  The Crown accepts that, whatever the starting point, you are entitled to credit for your age, lack of previous  convictions,  and  the  fact  that  you  entered  guilty  pleas  at  an  early opportunity.

[16]     Your lawyer, Mr Cassidy, submits that, if I look at the cases which have been decided in the past, I should impose a starting point in the range of 15-18 months’ imprisonment.  This would then be increased by six to nine months to recognise the fact that the indecent assault took place in circumstances of violence.  To recognise the totality of your offending – including the fact that there were two victims – Mr Cassidy submits that a further uplift in the range of three months should be given.  On Mr Cassidy’s submissions, this would bring the starting point to a term of imprisonment in the two to two-and-a-half years range.   Mr Cassidy also submits that the starting point should be discounted for your remorse, your lack of previous convictions, and the fact of your guilty pleas.

Starting point

[17]     I have looked at the cases decided by Courts in the past.  I do not find them to be of particular assistance and, as has been said before, indecent assault covers such a wide range of possible activities that there is no hard and fast rule.  However, the recent decision of the Court of Appeal in R v Lunjevich[2] gives me general assistance, and I think it is consistent with the Court of Appeal’s decision in R v Taane.[3]

[2] R v Lunjevich [2012] NZCA 454.

[3] R v Taane [2008] NZCA 461.

[18]     In Lunjevich, the offender knew that his victim was very drunk and therefore vulnerable.  He followed her from a nightclub, sufficiently close for her to be aware

and be scared.  She tried to ring for help but was too drunk to do so.  The offender

then attacked her.   He punched her twice, injuring her eye.   He began a sexual assault, which involved removing her top and touching her breasts.   This stopped when a car drove past.  The offender stole her phone and handbag so that she could not call for help. The Court of Appeal, on an appeal from the Crown, considered that a starting point of at least three years was appropriate.

[19]     In my view, your offending is more serious than that of Mr Lunjevich.   In your case, there were two victims, both young and vulnerable.  Your attacks on them were persistent and your use of violence, particularly against Miss SP, was at least as great.  Indeed, the only reason that your attack on her ceased was because she never ceased to struggle.  She managed to punch you, break free and run away.  Although the Lunjevich case also involved a charge of robbery, I think that the extent of the violence used here and the persistence of your indecent assaults makes up for that.

[20]     I have reached the view that the starting point on the charge of indecent assault of Miss SP should be three years and six months’ imprisonment.  But you had another victim, Miss MR, and there has to be an uplift for your offending against her. She was also vulnerable, a stranger to you, and you used violence against her in a context of an intention to seek sexual gratification.   However, the uplift I impose cannot take the starting point to an unrealistic level.  I have to stand back and look at the overall situation in its totality.  On that basis, I impose an uplift of three months. This gives an effective starting point of three years and nine months’ imprisonment.

Aggravating/mitigating features personal to the offender

[21]     I now come to consider how your personal situation should affect the starting point.

[22]     You  are  a  22  year  old  single  male  of  Indian  nationality who  arrived  in New Zealand on 2 October 2008.   You come from a poor farming family.   Your parents, no doubt through considerable sacrifice, sent you to New Zealand for a better way of life.  You are now what is known as an overstayer.  People with whom you have lived in New Zealand say that you are highly regarded, that this sort of

offending is the last thing they would expect of you and that they are shocked to learn of it.

[23]     Your explanation to the compiler of the pre-sentence report was that you were going for a run in the botanical gardens when you encountered the complainants. You said they abused you racially so you stopped.  You said the complainants then attacked  you and that you bit one of them on the cheek and pushed her away. However, you then admitted that you committed the offences as described in the summary of facts, saying that you were sexually aroused at the time.  To your credit, you went on to say that you are ashamed and would like to apologise to your victims and their families.   You have handed up  a letter today in which  you  give that apology.  Your risk of re-offending is assessed as medium and your motivation to change is assessed as high. You have no previous convictions.

[24]     Your attempt to shift blame to your victims by saying they first abused and then assaulted you does not do you credit.   Neither is it consistent with your acceptance of the summary of facts.  Your letter speaks mostly of the embarrassment you have caused your friends and family in India.  I do not intend to give you any particular credit for remorse in these circumstances.

[25]     I am prepared to give you credit for your previous good character, lack of previous  convictions,  and  your  youth.    As  the  Court  of  Appeal  identified  in Lunjevich, these factors tend to overlap.   But it is important that I take them into account because rehabilitation and reintegration will be helped by you spending as little time as possible in prison.  For these factors, I will discount your sentence by six months’ imprisonment.   This takes the starting point to three years and three months’ imprisonment.  I now turn to consider your guilty plea.

[26]     Your first appearance on these charges was on 1 August 2012 when your counsel, on your behalf, entered pleas of not guilty.  On 29 August 2012, you were arraigned at your request and you entered your pleas of guilty.  I note that you were charged originally with assault of Miss SP with intent to sexually violate her.  The Crown accepted that it would not proceed with that charge.   It remains on the indictment and I now formally discharge you on that count.  So you are now facing

sentence on the charge of indecent assault.  Against this background, I consider you are entitled to the maximum discount for pleas of guilty.  That discount is 25%.  I will round that to 10 months, which brings the end sentence to two years and five months’ imprisonment.

Sentence

[27]     Mr Singh, on the count of indecent assault, I sentence you to two years and five months’ imprisonment.  On the count of male assaults female, I sentence you to six  months’ imprisonment.   Those sentences will be served  concurrently,  which means that your effective sentence of imprisonment is two years and five months.

You may stand down.

Brewer J