Sidhu v Police - [2021] NZHC 1051

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sidhu v Police

Details

AGLC: Sidhu v Police [2021] NZHC 1051
Case: [2021] NZHC 1051
Decision Date: 11 May 2021

CaseChat Overview and Summary

Harcharan Singh Sidhu appeals against a decision of Judge J C Moses of the District Court, who declined to grant him a discharge without conviction for an assault charge. Sidhu seeks leave to appeal out of time, to adduce additional evidence on appeal, and to substantively appeal the District Court's decision. The High Court must determine whether to grant leave to appeal out of time, and if so, whether the appeal has merit. The court notes that Sidhu filed his appeal almost two years after the decision was made, and that he claims he was not aware of his right to appeal and the impact of a conviction on his immigration status. The court finds that Sidhu's reasons for delay do not justify granting leave to appeal out of time, particularly given the significant delay in lodging the appeal. The court also finds that the appeal lacks merit, as the District Court's decision was not in error. The court notes that Sidhu's offending was inherently violent, and the District Court correctly assessed the gravity of the offending and the consequences of a conviction. The court concludes that the immigration consequences of a conviction should be left to the immigration authorities, and that it was not for the District Court to usurp their role in deciding whether Sidhu meets the good character test.

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