IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000528
[2021] NZHC 1051
BETWEEN HARCHARAN SINGH SIDHU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 May 2021 Appearances:
AP Talakai for Appellant
LJ Sullivan for Respondent
Judgment:
11 May 2021
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 11 May 2021 at 3.30pm
Registrar/Deputy Registrar
Date……………………….
Solicitors: Kayes Fletcher Walker, Auckland To: A Talakai, Auckland
SIDHU v NZ POLICE [2021] NZHC 1051 [11 May 2021]
Introduction
[1] Harcharan Sidhu pleaded guilty to assault with intent to injure.1 He sought a discharge without conviction under ss 106 and 107 of the Sentencing Act 2002. Judge J C Moses declined the application on 28 November 2018.2 Mr Sidhu now seeks leave to appeal out of time against that decision, to adduce further evidence on the appeal (if leave is granted), and substantively appeals (again, assuming leave to appeal out of time is granted).
Facts
[2] At the time of the offending in March 2018, Mr Sidhu was 28 years old. He had been in New Zealand since 2015 on a series of work visas. By March 2018, he had been married for about one year. The victim of his offending was his wife.
[3] On 10 March 2018, the couple were at their home address. There was an argument about whether or not they should go out. Mr Sidhu’s wife left the house. Mr Sidhu followed her outside, where he pushed her up against their car and placed both of his hands around her neck and squeezed it. He continued to squeeze her neck for about 20 seconds, until a witness yelled that she was calling the Police. He then released his wife.
[4] Mr Sidhu pleaded guilty to this offending. I should note at the outset that despite pleading guilty to this offending and the summary of facts at the time, Mr Sidhu stated to the writer of the Provision of Advice to Court Report (PAC) Report at the time of his sentencing that he did not strangle his wife, but merely grabbed her by her collar. He said he pleaded guilty so as to not “waste the court’s time”.
[5] Judge Moses sentenced Mr Sidhu on 28 November 2018. I address the Judge’s decision in more detail further below. For present purposes, it is sufficient to note that the Judge declined Mr Sidhu’s application for a discharge without conviction and sentenced Mr Sidhu to 150 hours of community work.
1 Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.
2 Police v Sidhu [2021] NZDC 27624. The judgment was delivered in 2018 but was not authenticated, and thus given a formal court citation, until early this year when this appeal was lodged. Nothing turns on this.
[6] Following his offending but prior to sentencing, Mr Sidhu applied to renew his work visa. On 13 December 2018 (i.e. after his sentencing) Mr Sidhu says he received a “potentially…
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CaseChat Overview and Summary
The High Court declines to grant Sidhu leave to appeal out of time, and dismisses the appeal. The court notes that Sidhu's immigration status has already been assessed by the relevant authorities, and that granting a discharge without conviction now would be analogous to the court usurping the decision-making function of the immigration authorities. The court finds that the consequences of the offending were not out of proportion to the gravity of the offending, and that Sidhu's appeal lacks merit. The court concludes that Sidhu's offending was moderate to serious, and that the District Court correctly took into account the various mitigating factors applicable to Sidhu in assessing the gravity of the offending. The court also finds that the District Court correctly assessed the consequences of a conviction, and that it was not in error to leave the assessment of Sidhu's immigration status to the immigration authorities.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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