R v Singh-Kang

[2014] NZHC 126

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-019-008066 [2014] NZHC 126

THE QUEEN

v

JASKIRT SINGH-KANG

Hearing:                   5 February 2014

Counsel:                  RG Douch for the Crown

S Nepe for Defendant

Judgment:                5 February 2014

SENTENCING REMARKS OF ASHER J

Solicitors/Counsel:

Crown Solicitor, Hamilton. S Nepe, Hamilton.

R v SINGH-KANG [2014] NZHC 126 [5 February 2014]

Introduction

[1]      Jaskirt Singh-Kang, you appear today for sentence.  You have pleaded guilty to three counts.  Count one is a charge of unlawfully detaining the victim without his consent with the intent of causing him to be confined (kidnapping).  Count three is injuring the victim with intent to injure, and count five is assault using a chainsaw as a weapon.

[2]      There are two other counts, counts two and four.   The Crown asks me to discharge you on those counts.   I am prepared to do so.   You are discharged on counts two and four.

[3]      I have given you a stage one three strikes warning.

Facts

[4]      So I turn to the sentence.   The facts are not in dispute.   The victim was a friend of yours. You had a motor vehicle that was in his possession.  While it was in his possession the victim sold it.  You considered that he was quite wrong to do so. You registered a complaint about the missing vehicle and considered that the victim had, in selling the car, stolen it from you.

[5]      At about 10.30 pm on Friday, 14 December 2012, you and the two other defendants were travelling in a car together in Huntly when you saw the victim.  The two persons in the car were Ricky Hona and Trevor Smith.   Mr Hona has since entered pleas of guilty.  Mr Smith goes to trial next week.

[6]      The victim appears to have realised that you were in the car and to have been scared that you might attack him.  He ran away and hid.  There was then a sequence of events set out in the summary of facts where he hid in places and you and the co- defendants looked for him. You in fact saw him and began chasing him.

[7]      Ultimately you caught up with him and with your two co-defendants you forced him into the vehicle.  Once inside the vehicle all three of you began punching and kicking him.  Mr Smith drove the vehicle away.  You drove with the victim to a

picnic area where you pulled him out of the vehicle.  All three of you then began punching, kicking and stomping on him.  Mr Smith took a chainsaw from the boot of the vehicle.  He started up that chainsaw and gave it to you, Mr Singh-Kang.  You displayed the running chainsaw close to the victim’s neck and head said “do you think I’m all shit”.  The chainsaw was then turned off and put back in the boot.  You and Mr Hona then stomped on the victim one more time and told him not to tell the Police. All three of you then left the area in the vehicle.

[8]      The victim estimated the period of the attack at about one hour.

[9]      As a result of the attack he suffered multiple bruising to his face and body, a cut to the bridge of his nose which had resulted in blood loss, and in particular bruising to his eyes and upper lip.  He had sore legs, chest and back.  He went to hospital for treatment where he was treated but not hospitalised.

[10]     So against that background I turn to the consideration of what the appropriate starting point should be for your sentence.

Starting point

[11]     The lead charge is kidnapping which carries a maximum sentence of 14 years’ imprisonment.    Injuring  with  intent  has  a  maximum  term  of  five  years’ imprisonment. Assault with a weapon, a maximum term of five years’ imprisonment also.

[12]     Although you are charged with kidnapping I think your culpability is best assessed  by examining  the  injuring  with  intent  charge.    This  was  in  essence  a prolonged assault with the added elements of kidnapping and assault with a weapon. The  guideline  judgment  on  this  sort  of  assault  is  the  Court  of Appeal  case  of Nuku v R.1

[13]     In Nuku v R the Court of Appeal determined that there were three appropriate bands in relation to this sort of assault offending.  Band one is where there are few

aggravating features and a less than custodial sentence could be appropriate.  Band

1      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

two involves three or fewer of the aggravating factors listed in the lead case that relates to more serious assaults, R v Taueki.2   In band three, the most serious band, a starting point of two years up to the statutory maximum of five years will apply where there are three or more aggravating factors.  The aggravating factors are those set out in R v Taueki.  It is the combination of aggravating features which leads to the more serious bands.

[14]     So I will assess the correct sentence first in Nuku v R terms and then make such provision as is necessary taking into account the kidnapping count.  As I have said the kidnapping is incidental to what was in essence an act of prolonged violence on the victim.

[15]     In my sentencing indication I noted that there were at least three aggravating factors if the kidnapping and use of the chainsaw is put to one side.  There was an element of premeditation in that there was a prolonged period of chase, which meant that this was not just a spontaneous act.  You had time to reconsider but you chose to proceed.   The second element is that there were multiple attackers.   Indeed there were three in total. And then there was the attacking of the victim’s head with hands and feet.

[16]     I must say it is also arguable that in terms of the types of violence you see in relation to the lesser assault charges of the sort dealt with by the Nuku v R bands, it is arguable that here there was extreme violence.  This was a very nasty and prolonged assault.  I have to say as I have come back to this sentencing process I consider that my placing of your offending in band two was, if anything, generous to you.  There certainly was a case for seeing your offending as band three offending in terms of Nuku v R.

[17]     The photograph  of the  victim  and  the victim  impact  report  indicate  real injuries, and the victim has been seriously affected by the assault.  Fortunately the

marks of his injuries seem to have only lasted a matter of days.

2      R v Taueki [2005] 3 NZLR 372 (CA) at [31].

[18]     Now turning to comparative cases, the most important is the sentencing of your co-offender Mr Hona.  He was sentenced by Brown J on 20 January 2014.3  The Judge considered that there were the elements I have already referred to and a fourth element of vigilante action. although his Honour noted that Mr Hona’s involvement in that vigilante action was minimal; an observation that might not be applied to you.

[19]     Brown J referred to his earlier sentence indication where he had determined that a starting point of two years and three months’ imprisonment for the count of injuring with intent to injure, uplifted by nine months to recognise the kidnapping count, reaching a cumulative starting point of three years’ imprisonment was the correct starting point.  For the purpose sentence of my sentence indication I accepted that approach, and I still do.

[20]     I bear in mind some other relevant sentences that have been imposed.  In the case of Joblin v R a starting point of three years and four months was fixed.4    The assault had some similarities to the present and involved a kidnapping.   It also involved a serious charge of injuring with intent to cause grievous bodily harm and an element of extortion.  The victim was rendered unconscious and a knife was used in a threatening manner.  It was a more serious case.

[21]     There is an added element in this case that was not present in R v Hona, that is the use by you of the chainsaw.  Although you did not get the chainsaw out of the boot or start it, you were the one who threatened the victim with it.   This was a terrifying threat with the victim having reason to fear the most serious injury.  It is a serious aggravating factor, and as I said in my sentence indication, warranted a further uplift of three months to make your starting point three years and three months’ imprisonment.

[22]     So the starting point I fix for you Mr Singh-Kang is three years and three

months’ imprisonment.  I turn to matters relating to you personally.

3      R v Hona [2014] NZHC 12.

4      Joblin v R [2011] NZCA 585.

Personal factors

[23]     I now have a pre-sentence report.  You were 18 at the time of the offending. You have no previous convictions.  You are fully employed and have been working in a piggery for three years, and you are valued by your employer. You have been on bail for over a year on a significant curfew between 9.00 pm and 6.00 am.  You have not breached bail.   I have two testimonials.   I proceed on the basis that you are entitled to a discount for good character and for youth.

[24]     I note that Mr Hona was given a 20 per cent discount for the same factors. He was older than you, being 22 at the time of the offending, and had some minor previous convictions.  I accept Mr Douch’s submission that the 20 per cent discount given to Mr Hona on account of these matters was generous.  In my view the factors that I have outlined relating to you personally warrant a 20 per cent discount.

[25]     You also seek a discount in relation to the curfew.   I note that Mr Hona received a two month discount.  I regard that as generous.  For reasons of parity I will also give you that level of discount also.

[26]     This leaves the issue of the appropriate discount for a guilty plea.  Mr Hona received a 22 per cent discount.  Certainly the guilty plea has not been given at the first possible opportunity.  You indicated that you would give your guilty plea, as I understand it, at about the same time as Mr Hona.  Therefore, for reasons of parity again I am prepared to allow you a 20 per cent discount, although I record again that given the late giving of the plea that is a generous discount in all the circumstances.

[27]     If two months is deducted from the three years and three month sentence, and then 20 per cent is deducted for youth and good character, and then a further 20 per cent  is  deducted  for  guilty  pleas,  the  end  sentence  would  be  23  months’ imprisonment.

Home detention or community detention?

[28]     Your counsel, Ms Nepe, has had no quarrel with this reasoning to date, and did not seek to persuade me that the earlier sentence indication needed to be revised

in the area of assessing culpability.   However, she did ask me to depart from my indication in one material respect.

[29]     What I did in my sentence indication is that  having determined that the appropriate sentence of imprisonment would be 23 months, I indicate that home detention would be a suitable penalty for you.  Home detention is a possible penalty when there is the prospect of a sentence of imprisonment of less than two years. The Court has a discretion and can consider a wide range of factors.

[30]     The points in your favour in indicating that home detention would be the appropriate sentence are as follows:

(a)       You are young, being 18 at the time of the offending and now 19.

(b)You appear to have a good job and good prospects.  Your employer obviously values your employment.  You have held a steady job for three years.

(c)      You appear to lead a settled life.  You are supported by your partner who is in Court today.

(d)      I note you appear to be remorseful.

[31]     However, there have been two developments since my sentence indication. First, Mr Hona has been sentenced and the end sentence was not, as had been earlier indicated by Brown J, home detention but rather community detention for the maximum period of six months with particular curfew hours, and a period of supervision under s 45 of the Sentencing Act 2002 for one  year, and  a further sentence of community work of 250 hours.

[32]     The Judge, although he considered the matter quite finely balanced, was concerned that should Mr Hona be sentenced to home detention he would lose his employment.  He held:5

... having considered ... my assessment that your prospects of rehabilitation will be best enhanced if there is a guarantee that you remain in employment in a supportive environment (which I consider is by no means certain in a home detention context) I propose to impose a sentence of the nature recommended in the pre-sentence report.

[33]     That  recommendation  was  for  community  detention.     In  doing  so  he specifically noted the difference in culpability that I have identified in my sentence indication between Mr Hona and you.6

[34]     Ms Nepe in her excellent submissions has sought to persuade me that you also should be sentenced to community detention with community service and supervision, and not home detention.   She points to the fact that you are in fact younger than Mr Hona and have a better record.  There was no physical harm as a consequence of the use of the chainsaw.   Unlike Mr Hona, you have performed without incident on bail.   She emphasises the risk that you will lose his job, and indeed her written submissions appeared to assume that you definitely would lose your job should you be sentenced to home detention.

[35]     The second development is that there has been a pre-sentence report which recommends community detention. The probation officer observed:

Imprisonment is not seen as the least restrictive option available to the Court in this instance.  Should Mr Singh-Kang be sentenced to home detention he would  lose  his  current  employment,  which  would see  the  removal  of  a protective factor, placing him in a position where he would be reliant on his partner and/or the government, for financial support.

[36]     For this reason the sentence of community detention which would allow

Mr Singh-Kang to continue working was recommended.

[37]     The pre-sentence report is very full and sound and the probation officer’s concern that Mr Singh-Kang be able to keep working is entirely valid.  However, it became clear in the course of the exchange of written submissions that Mr Douch for the Crown did not agree with the assumption made by Ms Nepe and the probation officer that Mr Singh-Kang would have to be monitored if he worked while subject to home detention, and that given the difficulties in electronically monitoring while

he  worked  at  the  piggery  he  would  lose  his  job.    Mr  Douch  submits  that  the probation officer will have the discretion to allow him to work and if necessary to dispense with electronic monitoring.

[38]     So it is necessary for me to decide between these competing submissions and determine what the appropriate end sentence should be.   In doing so it has been necessary to consider the actual provisions in the Sentencing Act 2002 relating to home detention and the conditions that may be imposed by a probation officer.

Community detention not an appropriate sentence

[39]     I  would  first  observe  that  I would  not  regard  a  sentence  of  community detention with the other proposed conditions to be in accord with the sentencing principles set out in the Sentencing Act.  An offender must be held accountable for the harm done to the victim, there must be provision for the interests of the victim and bad conduct must be denounced.7    That is why applying orthodox sentencing principles and the tariff case, a starting point sentence of three years and three months’ imprisonment was reached, and even with the very generous discounts that I have outlined, a sentence of one year and 11 months’ imprisonment, just short of two

years remains the appropriate sentence of imprisonment.

[40]     Under  s  15(a)  of  the  Sentencing Act  home  detention  is  designed  as  an alternative to the imposition of a short term of imprisonment.  A community-based sentence such as community detention does not have the same feature of being an alternative to imprisonment. A community-based sentence would quite simply be an inadequate response to the culpability demonstrated in this offending.  It would not adequately denounce what was a very serious assault over a one hour period and with the various features I have already mentioned.   Such wrongdoing requires a sentence of imprisonment, unless the less restrictive option of home detention is in all the circumstances the more appropriate sentence.

Home detention does not necessarily involve electronic monitoring

[41]     The other factor is that home detention is not a rigid sentence.  It is clearly designed  to  give  the  probation  officer  a  wide  range  of  options  to  apply at  the probation  officer’s  discretion  to  ensure  in  appropriate  cases  that  rehabilitation options are utilised to the maximum.  In particular s 80C(3)(c)(ii) provides that an offender may leave the home detention residence with the approval of a probation officer to seek or engage in employment.   Thus, the legislature has envisaged specifically  that  probation  officers  should  consider  the  option  of  allowing  an offender to be engaged in employment, and in appropriate cases to permit just that.

[42]     Section 80C(2)(d) provides that it is at the discretion of a probation officer whether an offender must submit to electronic monitoring.  Section 80E where it sets out  the  purpose  of  electronic  monitoring  which  is  to  deter  the  offender  from breaching conditions that relate to his or her whereabouts and to monitor compliance with those conditions.   If a probation officer felt that an offender did not require deterrence by electronic monitoring, no direction need be given.  If an offender could be trusted not to breach conditions and that there was no need to monitor compliance because that trust could be appropriately placed on the offender, monitoring may not be directed if it will mean loss of a job.   All the more so if the employer is co- operative and trustworthy.

[43]     As observed in Hall’s Sentencing, a significant feature of the new home detention regime that was introduced with the recent amendments, was that compliance with the conditions of home detention may, but need not be, enforced by means of electronic monitoring.8   If a probation officer does not require the offender to submit to electronic monitoring there would  appear to be no reason why an offender could not serve a sentence of home detention without that condition being imposed, and there is no reason why an offender could not serve a sentence of home detention with only limited electronic monitoring.   So it would be open to the

probation officer to require electronic monitoring while the offender was at home, but not to require electronic monitoring when the offender was at work.

[44]     I therefore  read  s  80C(d)  as  giving  the  probation  officer  a  discretion  to require  full  electronic  monitoring,  to  dispense  with  electronic  monitoring  all together, or if appropriate to require electronic monitoring for certain parts of the day or week but not for other parts of the day or week.

[45]     The task of exercising this discretion is not for me, it is for the probation officer.   I do not have all the information about Mr Singh-Kang’s employment.   I have  information  about  his  home  and  a  home  detention  report,  and  I  have information about him in the probation report.  All that information would indicate that Mr Singh-Kang is a man who could be trusted.  It is particularly heartening that he has observed the terms of bail over a considerable period of time.  It would seem likely, but this would have to be checked, that the employer is of good character and could  be  relied  upon.    Undoubtedly  steps  could  be  put  in  place  to  monitor compliance in an informal way, without electronic monitoring, if that were thought appropriate.  If there is a breach of home detention conditions, the consequences for Mr Singh-Kang could include the end of the home detention sentence.  He could end up in prison.

[46]     What I will say, most definitely, is that as Mr Douch for the Crown has submitted, it would be wrong for the probation officers to assume that they have no option but to require electronic monitoring 24 hours a day, seven days a week, of Mr Singh-Kang.  Probation officers do have a discretion and it would be wrong for them to take the view that they are bound to require electronic monitoring.

[47]     So in the end I am not persuaded by Ms Nepe’s very proper efforts to achieve the best outcome for her client.  I do not consider I am bound for reasons of parity to give a similar sentence to that of Brown J in relation to Mr Hona because Mr Singh- Kang’s offending was considerably more serious involving as it did the additional charge and the threat involved in using the chainsaw and saying what was said.  I do not consider that community detention would be the right sentence in this case.  This offending is quite simply just too serious for such a penalty.  The right sentence is either imprisonment or home detention.

[48]     For reasons I have given home detention is the right sentence in my view.

[49]     I record that I recognise Mr Singh-Kang’s good qualities and the fact that every effort should be made to ensure that there is a satisfactory rehabilitation, and that he remains in our community and does not further offend.  I do not think it right to assume that he will lose his employment because of a sentence of home detention. Indeed in my view there has to be a very real possibility that the probation officers, when they examine the circumstances of his work, may permit him to carry on that work and not require electronic monitoring while he is doing that work.  There is also of course the possibility that he could be electronically monitored at work, but that is a matter on which there was no evidence at this point.

[50]     Accordingly I am not going to change the sentence that I had indicated was the appropriate sentence. That sentence will be a period of home detention.

[51]     So stand up please Mr Singh-Kang.

[52]     You  have  heard  my  sentencing  remarks  Mr  Singh-Kang.    But  for  the possibility of home detention you would be sentenced to 23 months’ imprisonment for this serious assault.  That in itself would be a lenient period of imprisonment for the reasons that I have set out.   However, because of your good character, your youth, your pleas of guilty, your excellent prospects and the support and love that you  have,  I  am  going  to  sentence  you  to  home  detention.     Despite  your understandable feelings perhaps that this is a little hard given Mr Hona’s sentence, I can tell you that this is a lenient sentence and you are fortunate to be sentenced to home detention only and not to a period of imprisonment.  It is because of your good character and your good prospects that I am going to give you this lenient sentence and I know that you will not let the Court down or your family down.

[53]     The sentence of home detention that I will impose upon you is 11 months’ home detention.  So the sentence is 11 months’ home detention.  That sentence will be imposed on all three counts. The sentences to be concurrent.

[54]     There will be conditions.  These are the conditions that are set out on pages two and three of the home detention report.  That report records on the suitability of the proposed address and of the proposed occupants and support.  Both are deemed

suitable and you are also deemed suitable to undertake home detention, and indeed for an electronically monitored sentence.

[55]     So the special conditions will be as follows:

(a)      Upon sentencing, travel directly to 40 Joseph Street, Pukemiro and await the arrival of a probation officer and monitoring company representative for the purpose of initiating a sentence of home detention.

(b)To reside at 40 Joseph Street, Pukemiro for the duration of the home detention sentence and not to move from that address without the prior written approval of a probation officer.

(c)      Not to purchase, possess or consume illegal/illicit drugs or any other synthetic cannabinoid/other drug or alcohol for the duration of the sentence.

(d)To undertake an appropriate alcohol and drug assessment and attend and complete any treatment counselling and/or programme including residential treatment if required as recommended by the assessment to the satisfaction of the service provider and the probation officer.

(e)     To attend, participate in and complete an appropriate anger management/violence prevention programme to the satisfaction of the service provider and the probation officer.

(f)      To attend, participate in and complete any other treatment, counselling and/or programme to address offending behaviour as identified by the probation officer to the satisfaction of the service provider and the probation officer.

(g)You are not to have contact or otherwise associate with the victim of your offending directly or indirectly unless you have the prior written consent of your probation officer.

(h)You  are  not  to  have  contact  or  otherwise  associate  with  the  co- offenders of your offending directly or indirectly unless you have the prior written consent of your probation officer.

[56]     You  may  stand  down  Mr  Singh-Kang  and  I  thank  counsel  for  their submissions.

……………………………..

Asher J