Sidhu v The King
[2025] NZCA 183
•21 May 2025 at 1.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA785/2023 |
| BETWEEN | SARVJEET SIDHU |
| AND | THE KING |
| Hearing: | 25 March 2025 |
Court: | Ellis, Dunningham and Harvey JJ |
Counsel: | P K Hamlin for Appellant |
Judgment: | 21 May 2025 at 1.00 pm |
JUDGMENT OF THE COURT
AThe application to adduce further evidence is declined.
BThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Dunningham J)
A week prior to trial, Sarvjeet Sidhu pleaded guilty to attempting to murder Harnek Singh, a prominent talk show host and YouTuber. Harnek Singh’s polarising views on politics and the Sikh religion were strongly opposed by Mr Sidhu and other members of the Sikh temple in East Tāmaki.
On 28 November 2023, Woolford J sentenced Mr Sidhu to nine and a half years’ imprisonment.[1] Mr Sidhu appeals his sentence on the grounds that the starting point was too high and the Judge did not take into account all available personal discounts.
The offending
[1]R v Sidhu [2023] NZHC 3406 [judgment under appeal] at [60].
Mr Sidhu attended the Sikh temple in East Tāmaki with his co-offenders, one of whom, Gurinderpal Brar, was the founder and spiritual leader of the temple. Mr Brar had significant influence over the members of the temple, including Mr Sidhu and his co-offenders. Some members believed orders from Mr Brar to be akin to orders from God.
Mr Brar was angry with Harnek Singh’s commentary on politics and the Sikh religion. He sought assistance from members of his inner circle at the temple to kill Harnek Singh. Mr Brar procured weapons, including knives, and stolen registration plates for the attack.
On 23 December 2020, Mr Brar gave the weapons and stolen registration plates to Mr Sidhu and one of his co-offenders, Jaspal Singh. Mr Brar told them to do the job properly and that they had been chosen by God.
At about 6.50 pm that same day, Mr Sidhu and two of his co-offenders parked outside Harnek Singh’s temple in a black Ford Ranger, which had been fitted with the stolen registration plates, and waited for Harnek Singh to finish work. He left the temple shortly after 10 pm. Mr Sidhu and his two co-offenders followed him in the Ford Ranger. They were then joined by another co-offender in a white Toyota HiAce van and two other co-offenders in a white Toyota Prius. Harnek Singh did not notice the three vehicles following him and continued driving to his home. Just before he could pull into his driveway, the Toyota HiAce van was used to ram his vehicle off the road. He came to a stop with the Ford Ranger on one side and the Toyota Hi Ace van on the other.
Mr Sidhu and his two co-offenders got out of the Ford Ranger and began their attack on Harnek Singh. They smashed the driver window and attacked him through it, using knives to slash and stab him. They inflicted approximately 40 wounds to his arms, chest, neck and head over a period of less than five minutes. During the attack, Harnek Singh used his vehicle’s horn to alert his neighbours who called the police. The police arrived and administered first aid, including a tourniquet to his arm, which saved his life.
After the attack, Mr Sidhu and Jaspal Singh drove to another co-offender’s home in Flat Bush. There, Mr Sidhu tried to conceal the Ford Ranger inside a garage, showered and disposed of his bloodied clothing, and tended to his injuries.
Harnek Singh’s injuries were extensive. He received multiple lacerations to the face, scalp, neck and chest, which had to be initially stapled and later surgically repaired. His right arm had no blood supply as the radial and ulnar arteries were found to be cut. The radial artery was repaired with a vein graft and the ulnar artery was ligated. Harnek Singh underwent multiple surgeries to repair his injuries. He will likely suffer significant long-term effects on the use of his upper limbs due to nerve injury and scar tissue. It is unlikely he will make a full recovery. Unsurprisingly, he speaks of his life and that of his family, being transformed in every way by the attack, including psychologically, physically, financially and socially.
In all, three individuals, including Mr Sidhu, pleaded guilty to the attempted murder, and three more were found guilty following a jury trial.
Sentencing
In sentencing Mr Sidhu, Woolford J said Mr Sidhu’s offending was on par with Jaspal Singh, who had been sentenced by Venning J to five years and three months’ imprisonment after taking a starting point of 12 and a half years.[2]
[2]R v Singh [2022] NZHC 1188 at [27] and [39].
In his sentencing decision, Venning J identified the aggravating features of the offending as being:[3]
(a)the offending was planned and the victim was deliberately targeted to be killed;
(b)the extreme violence involved in the attack, with 40 stab wounds being inflicted on the victim;
(c)the attack included multiple blows and stabs to the neck and head of the victim;
(d)there were six physical attackers;
(e)the weapons include knives which were intended to inflict fatal injuries on the victim; and
(f)the seriousness of the injuries inflicted, noting the victim would be permanently affected by the injuries he had suffered.
[3]At [18].
While counsel for Mr Sidhu sought to distinguish his client’s offending from that of Jaspal Singh, saying Jaspal Singh was more seriously involved in the offending, Woolford J rejected that submission saying:[4]
… I see no reason to differentiate your role from that of Jaspal Singh for the purposes of setting a starting point. Although you dispute meeting with Gurinderpal Brar to receive instructions and say you only dealt with Jaspal Singh, you pleaded guilty to an agreed summary of facts which reads:
8.On 23 December 2020, Gurinderpal Brar gave Jaspal Singh and Sarvjeet Sidhu final instructions, and a bag containing weapons and stolen number plates LWK 360. Gurinderpal Brar told Jaspal and Sarvjeet that they had been chosen by God and to make sure that they do the job properly.
[4]Judgment under appeal, above n 1, at [46].
Woolford J also noted that Mr Sidhu had taken an active role in the attack evidenced by the injuries Mr Sidhu had himself received — caused either by his own knife or the knife carried by Jaspal Singh.[5]
[5]At [47].
Accordingly, Woolford J adopted the same starting point of 12 and a half years’ imprisonment.[6]
[6]At [48].
In terms of discounts, Woolford J considered a 10 per cent discount should be afforded for Mr Sidhu’s guilty plea.[7] However, he held that a discount for youth was not available, noting that Mr Sidhu was 24 years old at the time, married with a son, and the offending was extremely serious and highly premeditated.[8]
[7]At [51].
[8]At [49].
Woolford J also held that a good character discount was not available, saying while Mr Sidhu had no previous convictions, there was also no evidence that he had contributed to society in a positive manner such as to justify a discount for previous good character.[9]
[9]At [50].
The Judge considered the content of a report prepared under s 27 of the Sentencing Act 2002.[10] Having regard to the material in that report, and his own conclusions drawn from the evidence and other material available, Woolford J concluded that Mr Sidhu was “vulnerable and able to be manipulated by Gurinderpal Brar”.[11] He granted a further 10 per cent discount for factors identified in the s 27 report.
[10]At [52]–[56].
[11]At [55].
Woolford J gave no discount for remorse, noting that a letter of remorse was only received that morning, and the PAC report and s 27 report suggested Mr Sidhu blamed the police for not restraining the victim’s activities and that he believed his actions were justified.[12]
[12]At [57].
Finally, Woolford J gave a further discount of six months for the restrictions of electronically monitored bail over a period of approximately two years and five months.[13] This resulted in an end sentence of nine and a half years’ imprisonment.
This appeal
[13]At [58].
Mr Sidhu advances his appeal on the following grounds:
(a)The starting point was manifestly excessive.
(b)Woolford J erred in omitting to impose the following discounts:
(i)youth;
(ii)previous good character;
(iii)remorse; and
(iv)the impact of imprisonment on his family.
(c)In addition, the sentencing Judge did not place sufficient weight on the causative contribution between the offending and Mr Sidhu’s religious devotion and a further discount should be allowed.
Application to adduce fresh evidence
Mr Sidhu also sought to adduce fresh evidence on appeal. This evidence is a psychological report on Mr Sidhu prepared by Namrata Nath, a registered psychologist. Mr Sidhu’s counsel, Mr Hamlin says it should be admitted because it explains the causal nexus between Mr Sidhu’s background and his offending.
That application is opposed by the Crown on the basis that this evidence is not fresh or cogent because it could have been prepared at the time of sentencing and it adds nothing substantive to the material that was before the Judge.
We address the question of whether this evidence should be admitted when considering the claim that there was an inadequate discount for s 27 factors.
Grounds of appeal
Was the starting point manifestly excessive?
Mr Hamlin argued that the starting point was too high because it failed to take into account Mr Sidhu’s lesser involvement compared to Jaspal Singh. Mr Hamlin also submits that Venning J’s reliance on R v Tipuia, (used to set the starting point for Jaspal Singh) was inappropriate and, when Mr Sidhu’s offending was compared with that in Tipuia, it justifies a lesser starting point.[14]
[14]R v Tipuia HC Auckland CRI-2005-092-2219, 22 March 2005.
The only facts relied on by Mr Hamlin were that Jaspal Singh drove the vehicle used in the attack while Mr Sidhu was a passenger, and it was Jaspal Singh who then reported back to Mr Brar after the attack. He asserts that Mr Sidhu’s involvement lacked the same level of direct responsibility in terms of operational oversight.
Although the decision in R v Tipuia was only indirectly relied on in sentencing Mr Sidhu, Mr Hamlin argued that Mr Sidhu’s role in the offending was less than that of Mr Tipuia — whose offending which attracted a starting point of between 12 and 13 years. Mr Tipuia was involved in the attempted murder of a 13-year-old victim known to him. He lured him to an area under a bridge, placed a blindfold on him and then tried to break his neck. Mr Tipuia and his associates then began punching and kicking the victim with steel capped boots and threw rocks at his head. Mr Tipuia then used a Stanley knife to slash the victim’s throat. The victim was left to die.
Mr Hamlin submitted that Mr Sidhu’s role in the offending was more passive than Mr Tipuia’s. Mr Tipuia took deliberate and calculated actions including blindfolding the victim and luring him to a location for a group attack, whereas Mr Sidhu had a lesser role. He followed instructions from Mr Brar, whom he believed to be relaying a message from God, and was simply a passenger in the vehicle driven by Jaspal Singh. Mr Hamlin also submitted that the victim in Tipuia was more vulnerable than the victim here.
Taking all these factors into account, Mr Hamlin argues that a starting point in the vicinity of 11 years’ imprisonment would appropriately reflect Mr Sidhu’s culpability.
Discussion
We are not persuaded that the starting point was too high when compared with Tipuia, noting that there was greater planning in the present case and the victim here was also vulnerable (confined in his car) when he was being attacked. That said, we do not consider much assistance is gained from one off comparisons such as that.
Rather, we accept, as Ms Hoskin for the Crown submitted, that when the aggravating features of the offending are identified, the offending fits squarely within band three of R v Taueki.[15] Band three encompasses situations where three or more aggravating features are present and the combination is particularly grave.[16] Here, there were seven such factors present.[17] Indeed, the offending here closely mirrors one example given in Taueki for band three offending:[18]
An episode of street violence where multiple attackers set upon a victim in a premeditated attack, using weapons which they brought to the scene for the purpose, and where serious and lasting injuries are inflicted on the victim will call for a starting point in the lower to middle range of Band 3. Where the victim is particularly vulnerable, or the attack has “hate crime” aspects to it, a higher starting point would be required. Where the victim is left with injuries which will have an ongoing impact on his or her enjoyment of life a starting point at the top end of Band 3 will be called for.
[15]R v Taueki [2005] 3 NZLR 372 (CA).
[16]At [31] and [41].
[17]Specifically, the attack featured extreme violence, premeditation, the use of weapons, targeting of the head, multiple attackers, it was motivated by religious hostility, and caused very serious injury to Harnek Singh.
[18]R v Taueki, above n 15, at [41(a)].
The given range for band three offending is nine to 14 years and Taueki is, of course, a sentencing guideline case for grievous bodily harm offending, involving the intentional infliction of very serious harm. The offence of attempted murder is more serious because it involves an actual intent to kill and we accept this may justify starting points that are higher than those indicated in Taueki. Seen in this light, the starting point of 12 and a half years is clearly appropriate.
We also accept that the facts of this offending brings into play the principle in s 8(d) of the Sentencing Act, which requires a court to impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases. Here, the offenders believed that they had succeeded in killing Harnek Singh with Jaspal Singh ringing Mr Brar shortly after the attack and saying: “It’s done.” Indeed, but for the attending police officer applying a torniquet to Harnek Singh’s arm, he would have died at the scene.
Again, given the many aggravating features of the offending, including that the victim nearly died, a starting point near the maximum sentence available was justified.
We also reject the argument that Mr Sidhu’s role can be distinguished from the role of Jaspal Singh. There is no reason to distinguish between the driver and the passenger here. Both were privy to the plan, having been given instructions and the bag containing the weapons and the stolen registration plates, and both were involved in the physical attack. The fact Jaspal Singh rang Mr Brar to very briefly report what was done does not obviously elevate his role, particularly when Mr Sidhu made two calls to one of the other co-offenders while they were following Harnek Singh’s vehicle.
In summary, we are satisfied that the 12 and a half year starting point was appropriate, taking into account the various aggravating features of the offending and the fact that Mr Sidhu’s role was comparable with that of Jaspal Singh.
Was a discount required for previous good character?
Mr Hamlin argues that the Judge erred in failing to impose a discount for previous good character.
In that regard Mr Hamlin acknowledged that while a clean record alone is worthy of recognition, it is limited in the absence of positive contribution.[19] However, he pointed to a number of letters in support of Mr Sidhu referring to his good standing in the Sikh community, his active participation in volunteer work and community projects, and his general good character. Mr Hamlin argues that a discount for previous good character in the range of 10 to 15 per cent is warranted.
[19]Hockley v R [2009] NZCA 74 at [30] and [32].
Ms Hoskin, however, submitted that a discount is not required simply because Mr Sidhu had no previous convictions.[20] Given the lack of genuine remorse and empathy for his victim — a feature which affected the assessment of his rehabilitative prospects — this was not a case where a discount for good character was warranted.
Discussion
[20]Britow v R [2017] NZCA 229 at [11], citing Manawaiti v R [2012] NZCA 88 at [19].
In declining to give a discount for previous good character, Woolford J acknowledged that Mr Sidhu had no previous convictions, but he also said there was no evidence that he had contributed to society in a positive manner as to justify a discount for previous good character.[21] He also noted that the PAC report assessed Mr Sidhu as having a moderate to high likelihood of reoffending and a high risk of harm to others.
[21]Judgment under appeal, above n 1, at [50].
We acknowledge the Judge did not substantively address the character references filed in support.[22] These comprised numerous letters from people who know him, including his wife, work colleagues and members of the Sikh community. Many of them attest to Mr Sidhu’s involvement in activities at the temple. For example, by “helping others at the Sikh temple and doing volunteer [work] such as cleaning dishes and serving food while reciting prayers”.
[22]Albeit the Judge did refer to one such letter in response to a defence submission about Mr Sidhu’s pre-sentence report.
However, that commitment to work within the Sikh congregation which most of the references speak of, is a double-edged sword. It was his religious beliefs that had him attend protests from 2017 onwards aimed at stopping his victim’s messages. This included a protest in 2020 in Manukau where people were reportedly hitting pictures of the victims with their shoes and stamping on an effigy of the victim. One of the reference letters referred to the victim as an “agent provocateur” who destroyed many lives and that the Sikh community continues to be a victim of his “deliberately distorted broadcasts”, thus implicitly supporting Mr Sidhu’s actions.
In our view, Mr Sidhu has shown willingness to do both good and bad for the religious community of which he is a member. We remain unsatisfied that he can point to circumstances which warrant a good character discount.[23]
Should there be a discount for remorse?
[23]And noting that such discounts were also not given to Jaspal Singh, Jobanpreet Singh or Gurinderpal Brar either.
Mr Hamlin says that the Judge was wrong to decline a discount for remorse. He submits that the letter of remorse provided at sentencing, in which Mr Sidhu expressed sincere regret for his irrational and selfish actions, was genuine. He also refers to the psychological report which said that while Mr Sidhu struggled to express remorse because of the influence of Mr Brar on his faith, he has been clear about not condoning violence and demonstrating empathy for the victim.
Discussion
However, we are satisfied that the Judge was entitled to decline a discount for remorse. The reports and other documents before the Court indicate that Mr Sidhu still believes his actions were, at least in part, justified. To the pre-sentence report writer, Mr Sidhu qualified his assertion that he was against violence by saying “if you don’t have the key to the door, you have to break the door”. He also suggested that the police were at fault for not addressing the victim’s YouTube messages. This suggests that Mr Sidhu still believes that the victim’s purported attack on his religious and political beliefs, may have justified his actions.
Likewise, the s 27 report detailed that he was, at times, “accusatorial toward the actions of the victim”. This view was not entirely dispelled by the letter of remorse which said:
It is by no means an excuse, I just hope your honour can sympathize with the fact that after 8 years of hate & hurt speech to my religion, beliefs, history & family, and with what appeared on the surface as no support from police it was suggested the only solution of direct action surrounded by [heightened] emotion of [my] own and that of others I came to [an] irrational decision.
Like Woolford J, we are sceptical about how genuine the expressed remorse is, when these comments still suggest he considers the victim was, in part, responsible for provoking the attack.
For these reasons, we are satisfied the Judge was correct to decline a discount for remorse.
Was there an inadequate discount for s 27 factors?
A thoughtful and detailed s 27 report was prepared prior to sentencing by Professor Chris Gallavin. Professor Gallavin was careful to detail the limits of his expertise when writing the report. Nevertheless, he concluded that a range of factors made Mr Sidhu far more vulnerable to being persuaded to participate in the offending by an authority figure such as Mr Brar. These included:
(a)his personal, family and community background, including his difficult relationship with his abusive father;
(b)his experience of being in a family with a rigid patriarchal hierarchy and which promoted extreme obedience to authoritative figures; and
(c)his experience of cultural dislocation coming to New Zealand on his own, which saw him, in turn, connect with the Sikh religion and his local temple for support.
Professor Gallavin was of the view that Mr Sidhu was a highly impressionable young man who demonstrated simple binary logic and naivety. That, combined with his family history, meant he was “easily manipulatable” and was likely the victim of “strong and effective brainwashing”. He said Mr Sidhu needed considerable supervision and intense counselling support to avoid falling prey to manipulation in the future.
Professor Gallavin concluded that Mr Sidhu’s personal circumstances and background were fundamental to his current offending. He said that the factors he identified had an “operative” and “proximate connection” to Mr Sidhu’s offending in that, but for his experience of these factors, his decision-making processes would likely have been entirely different.
In sentencing Mr Sidhu, Woolford J granted a 10 per cent discount “for the factors identified in the s 27 report”.[24]
[24]Judgment under appeal, above n 1, at [56].
Mr Hamlin noted that Woolford J recorded that the s 27 report did not establish a direct link between the factors and the offending.[25] He therefore seeks to adduce fresh evidence in the form of a psychological report of Ms Nath, a registered psychologist. She similarly summarises Mr Sidhu’s background, from his life in Haryana, India, through to moving to New Zealand at the age of 18 on a student visa and his growing commitment to the Sikh faith after moving to New Zealand.
[25]At [54].
Ms Nath applied the Millon Clinical Multiaxial Inventory-IV to Mr Sidhu, which is a diagnostic personality assessment inventory used to establish “personality pathology in criminal populations”. From this she derived a profile for Mr Sidhu which suggested that he is likely to be dependent on others for providing him with a sense of security and reassurance. Further, he would likely have a sense of duty to obey and follow those in authority, especially in the context of a person he idolises showing interest and affection towards him. His profile showed he would be sensitive to rejection and have a tendency to please others for approval.
Ms Nath also assessed Mr Sidhu’s statistical risk of committing further relevant violent offences after being released from prison. Using the RoC*RoI, an actuarial risk measure used to assist in the prediction of an offender’s risk of imprisonment following reconviction, Mr Sidhu was assessed as being in the very low risk category overall. However, she notes that if he were to reoffend violently, he would likely do so under the influence of a religious leader who could direct him towards violence as a means of protecting his faith.
Mr Hamlin seeks to adduce this further evidence on the grounds that it addresses the Judge’s observation that Professor Gallavin’s report did not establish a direct link between Mr Sidhu’s background factors and the offending. In reliance on Ms Nath’s report, Mr Hamlin says that link can now be drawn and a greater discount for those cultural factors should now be given.
As already noted, Ms Hoskin opposes the admission of the s 27 report saying such a report could have been prepared at this time of sentencing, but more importantly, it adds nothing substantive to the material which the Judge already took into account.
In Ms Hoskin’s submission, the 10 per cent discount could not be termed inadequate. It was broadly supported by the 15 per cent afforded to Jobanpreet Singh, who had lesser involvement in the offending and whom the Judge accepted was particularly vulnerable.[26] She also points out that his equally culpable co-offender, Jaspal Singh, did not have his sentence reduced at all for susceptibility to cultural and religious influence.
Discussion
[26]The Judge considered Jobanpreet Singh’s loss of both parents at a young age and the absence of any family support in New Zealand facilitated Mr Brar’s assumption of authority over him.
We consider Mr Hamlin’s application to introduce fresh evidence on appeal was prompted by a misunderstanding of the Judge’s conclusions on Professor Gallavin’s s 27 report. Professor Gallavin clearly drew a connection between Mr Sidhu’s background and the offending saying:
I suggest his personal circumstances and background are directly relevant to his current offending and represent a form of deprivation and loss of agency that has had an impact upon his ability to make sound [judgements] and ultimately to control his actions and act in ways both reasonable and normatively acceptable to a broad array of New Zealand citizens.
He also concluded that the various factors he identified had an “operative” and “proximate” connection to his offending, in accordance with the guidance of the Supreme Court in Berkland v R.[27]
[27]Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
The Judge accepted that there was a link between Mr Sidhu’s background and his offending. saying that he was prepared to grant 10 per cent “for the factors identified in the s 27 report”.[28] Affording any discount at all is predicated on the existence of a relevant nexus.
[28]Judgment under appeal, above n 1, at [56].
In our view, Ms Nath’s report does no more than confirm, through testing, the personality profile of Mr Sidhu which Professor Gallavin had already identified as making him vulnerable to the influence of Mr Brar. While her use of the actuarial tool, the RoC*RoI, suggested Mr Sidhu was at low risk of reoffending, she indicated that risk remained if he was under the influence of a religious leader who could direct him towards violence as a means of protecting his faith. Again, this finding is consistent with the observations in the reports which were before the Judge.
In the circumstances, we accept the respondent’s submissions that Ms Nath’s report, while cogent, is not fresh, in the sense of not being able to be obtained at the time of sentencing. More importantly, it does not add anything substantive to the material that was already before the sentencing Judge. Thus, we do not consider that, even if we admitted the report, it would have a potential impact on the sentence and for that reason we do not admit it.[29]
[29]Mark v R [2019] NZCA 121 at [16].
In our view, the Judge properly took into account the link between Mr Sidhu’s family and cultural background, which increased Mr Sidhu’s susceptibility to the influence of Mr Brar, and his offending. Whether viewed through the lens of Professor Gallavin’s report or Ms Nath’s report, we are satisfied that the discount of 10 per cent was well within range, having regard to the discounts afforded both to the offender in the leading case of Berkland v R and to the co-offenders in the present case.[30]
Should there have been a youth discount?
[30]Berkland v R, above n 27. Ten per cent was the discount the Supreme Court considered appropriate for Mr Berkland after accepting that his deprived background and addiction had causatively contributed to his offending. The discounts given to co-offenders here, as discussed at [58] above ranged from 0–15 per cent.
Mr Hamlin argues that Mr Sidhu, at 24, was still entitled to a discount for youth. He points out that in Churchward v R, this Court acknowledged that the discount could apply beyond the age of 18, depending on the specific facts in the case.[31] He says that here, the intersection between Mr Sidhu’s youth and upbringing meant he was vulnerable to manipulation by Mr Brar and this appeared to be the catalyst for his poor decision-making. He also submits that Mr Sidhu has a significant capacity for rehabilitation. He seeks a discrete youth discount of up to 10 to 15 per cent.
[31]Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [98].
We are satisfied by some margin that the Judge was entitled to decline a youth discount in the circumstances of this case. First, Mr Sidhu was at the very upper end of the age bracket where a youth discount might be considered. However, more importantly, the offending itself was not characterised by the impulsivity that often characterises youthful offending. Rather, this was a carefully planned and deliberate decision to carry out a murder. We also consider that Mr Hamlin is inviting us to consider the same vulnerabilities that the s 27 report identified to justify a further discount under this heading and that would, in our view, involve double counting those factors.
Should there be a discount for impact of imprisonment on family?
Mr Hamlin explains that Mr Sidhu has a three-year-old son and a wife, who have no other family support in New Zealand. He says Mr Sidhu’s incarceration has impacted his son significantly because he is absent for formative years crucial for his emotional and psychological development. He submits, in reliance on case law, that these impacts should have been considered at the time of sentencing and a discount of five to 10 per cent was warranted.[32]
[32]Campbell v R [2020] NZCA 356; Whaanga v R [2024] NZCA 29 at [33]; and P v R [2024] NZHC 3084.
By way of example, Mr Hamlin points to the observations of O’Gorman J in P v R, where she said:[33]
(a)Approaching matters from the interests of the child, I consider it obvious that the appellant’s imprisonment would have a significant adverse impact on the developing bond between the infant and her father, even though her cognitive development is at an early stage. The lack of support caused by the father’s absence also directly impacts on the relationship between the mother and the daughter in terms of the financial pressures and parenting responsibilities that she must now bear as the sole primary caregiver, albeit with the support of the appellant’s wider whanau. …
(b)The fact that the daughter remains in the care of her mother is relevant to the size of the appropriate discount but does not preclude a discount being given. …
Discussion
[33]P v R, above n 32, at [28].
No discount on this ground was sought at sentencing so we must consider it afresh. We start by observing that, in both P v R and Whaanga v R, the combination of discounts available (including the discount for impact of imprisonment on dependent child or children) reduced the sentence to a short-term sentence. So, whether or not home detention was available (it was not in P v R), there was a real prospect that the defendant could resume active parenting in a very short space of time. That is not the case here.
The circumstances in which such a discount might be given were considered by the Supreme Court in Philip v R.[34] There, the Court observed that a discount for the effect of a sentence of imprisonment on an offender’s children ought not to be characterised as “rare”, or limited to circumstances in which the offender is the primary caregiver.[35] Rather, “[w]hat is required is a consideration of all of the relevant circumstances which must include the child’s interests”.[36] In Philip, the appellant was given a further discount on sentencing but, again, this was a relatively short sentence and led to his immediate release.
[34]Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.
[35]At [56].
[36]At [56].
In the present case, the circumstances are very different. Mr Sidhu has committed very serious offending and will be incarcerated for several years before he is eligible to be considered for parole. The family is inevitably going to have to adjust to life without Mr Sidhu’s presence as a hands-on father and breadwinner. In these circumstances, there is less obvious benefit to be gained in terms of the child’s welfare by affording a discount to reflect parental responsibilities than there would be where such a discount allows the parent to return to the family in short order. Thus, while we do not preclude a discount for parental responsibilities where there is more serious offending, we see this as less appropriate where, as here, the offending is serious and where the defendant is not the primary caregiver.
We therefore decline to afford a discount for Mr Sidhu’s parental responsibilities.
For the reasons above, we do not consider that the end sentence of nine years and six months’ imprisonment was manifestly excessive.
Result
The application to adduce further evidence is declined.
The appeal against sentence is dismissed on all grounds.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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