R v Singh CA17/05

[2005] NZCA 103

IN THE COURT OF APPEAL OF NEW ZEALAND

CA17/05

THE QUEEN

v

SHALLENDRA SINGH

Hearing:         16 May 2005

Court:             William Young, Goddard and Salmon JJ Counsel:     C L Harder for Appellant

J M Jelas for Crown Judgment: 19 May 2005

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Salmon J)

[1]    A week before he was due to be tried before a jury the appellant pleaded guilty to two charges of receiving computer equipment obtained by a crime.

[2]    The first charge related to events that occurred between June 2000 and September 2003. The statement of facts alleges that over that period the appellant received a Toshiba laptop computer stolen from Roche Products  Ltd and between  10 and 20 February 2003 he received seven stolen laptop computers.

R V SHALLENDRA SINGH CA CA17/05 [19 May 2005]

[3]    The second charge relates to offences said to have been committed between  1 and 16 October 2003. The statement of facts refers to receiving various stolen laptop computers and miscellaneous items of stolen computer equipment. The second charge is said to be a representative count. The first was similarly described but in fact was not  a  representative  charge  but  related  to  specific  items  of  stolen property.

[4]    Mr Singh was sentenced by District Court Judge Johnson to six months imprisonment and was given leave to apply for home detention. An application to defer the commencement of the sentence was declined.

[5]    The appellant submits the sentence was excessive particularly in relation to that imposed on a co-offender, a Mr Roiall. He says he should have received a non-custodial sentence. Mr Roiall also faced charges of receiving computer and other equipment. In respect of the incidents relied upon for the second charge it was alleged that Mr Roiall assisted Mr Singh by cleaning material off the computers so that they would be in a fit state for on-sale. Mr Roiall pleaded guilty at an early stage. Mr Singh’s plea of guilty came about as a result of Mr Roiall preparing an affidavit describing Mr Singh’s involvement.

[6]    Mr Roiall was sentenced by a different Judge. That Judge took a starting point of 12 months imprisonment and reduced it to six months to reflect the plea of guilty and the assistance he provided to the police in relation to the charges against Mr Singh. Mr Roiall was also given leave to apply for home detention.

[7]    In the sentencing notes relating to the appellant the Judge notes that, unlike Mr Singh, Mr Roiall had four previous convictions for receiving. Counsel urged the sentencing Judge, as he did again on appeal, that the difference in the past record of the two men justified, in the case of Mr Singh, a community based sentence rather than one of imprisonment.

[8]    The Judge addressed the question of consistency. He said at [9] of the sentencing notes:

When it comes to sentence I have to say there is no exact science in this. There is a range of sentences which would be suitable or admissible given individual characteristics. One of the important things is to seek to have consistency between sentences, but as your counsel rightly says differences between co-offenders may mean that consistency can still be reached, even though the sentence is different, to take into account those factors. I think however that really things are evened out here because it seems to me that there is credit in the claim that you were the principal; and secondly though you do not have receiving convictions, you have sentences for two years, though suspended some nine years ago, for serious dishonesty offences. For myself, having now seen the extent of what is your involvement in this matter, I cannot see any reason to sentence you to anything different from your co-offender.

[9]    The Judge did not specify a starting point in relation to the sentence imposed upon Mr Singh. But given the lateness of the guilty plea, the appropriate starting point would presumably have been in the order of seven or eight months.

[10]   In his submissions to this Court, Mr Harder stressed Mr Singh’s limited criminal history, with no previous convictions for theft, burglary, receiving or  similar offences. In fact he was convicted in 1995 of perverting the cause of justice and extortion. Mr Harder whilst acknowledging the seriousness of those charges, emphasised that they arose out of Mr Singh’s intervention in a family matter. He submitted that the offending occurred as a result of Mr Singh’s decision on how to deal with an  alleged  sexual  interference  with  his  sister.  He  stressed  too  that  Mr Singh was only 20 at the time and the offending occurred in 1994. He submitted that a community based sentence consisting of a substantial period of community service together with a substantial fine would take into account the necessary purposes of the Sentencing Act. He said that Mr Singh no longer deals in second hand items and that he has recently set up a online business directory and has responsibility for three employees whose jobs would be at risk should Mr Singh be required to serve a custodial sentence, even one of short duration.

[11]   In order for this appeal to succeed we must be persuaded that the sentence imposed by the District Court Judge was manifestly excessive. We have not been so persuaded. It is apparent that Mr Singh’s involvement in receiving of stolen goods was at a significant level. The offence of receiving carries a maximum penalty of seven years imprisonment where the value of the property is in excess of $1,000.  The second of the two charges included such a value as an ingredient. Receiving

conducted on the scale apparent in this case is a particularly pernicious activity providing as it does a ready market for thieves.

[12]   Accepting all that Mr Harder has said about Mr Singh’s previous offending, the fact remains that he has earlier convictions for serious offences relating to the proper administration of justice. There is no reason for us  not  to  accept  the  District Court Judge’s finding that he was the principal of the two offenders in this activity. It is apparent that the starting point for Mr Singh must have been substantially less than that for Mr Roiall. Taking into account the differences identified by the District Court Judge we have not been persuaded that the sentence imposed was manifestly excessive and the appeal is therefore dismissed.

Solicitors:
Crown Solicitor, Auckland