Singh v Police
[2022] NZHC 3002
•16 November 2022
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2022-463-133
[2022] NZHC 3002
BETWEEN JASWINDER SINGH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 November 2022 (Heard at Rotorua) Appearances:
S Hartley and S R Mason for Appellant D Coulson for Respondent
Judgment:
16 November 2022
JUDGMENT OF WOOLFORD J
(Appeal against sentence)
Solicitors: Holland Beckett Law, Tauranga
Pollett Legal Ltd (Office of the Crown Solicitor), Tauranga
SINGH v NEW ZEALAND POLICE [2022] NZHC 3002 [16 November 2022]
[1] Mr Singh pleaded guilty to possession of a methamphetamine utensil,1 reckless driving causing injury2 and causing injury while driving under the influence of drugs.3 He was sentenced to 13 months’ imprisonment, two years’ disqualification from holding a drivers’ licence and reparation payments by Judge Mabey KC on 17 September 2021 at the Tauranga District Court.4
[2] Mr Singh appeals his sentence of two years’ disqualification from driving on the grounds that Judge Mabey failed to consider the effect of disqualification on the appellant in the relevant circumstances. The rest of the sentence is not challenged; Mr Singh has served his sentence of imprisonment.
[3] The appeal is 12 months out of time. Leave to appeal is required but is not opposed by the Crown. I therefore grant leave.
Facts of offending
[4] On 5 February 2021 Mr Singh was driving on State Highway 2. Police observed him near the intersection of Wilson Road where he was halfway across the centre line causing incoming traffic to pull to the left and stop. He then continued driving, swerving right to left causing a truck following him to brake heavily to avoid collision. He pulled over to the shoulder of the road.
[5] Mr Singh then rejoined the flow of traffic. He accelerated and continued driving, using both the left and right lane as well as driving down the centre of the road. Several other motorists were forced to take evasive action.
[6] The victim was driving in the opposite direction. She had two children aged nine and 10 in the car. She was driving behind a small hatchback vehicle. The hatchback vehicle took evasive action upon seeing Mr Singh heading directly towards
1 Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty one year imprisonment and/or a
$500 fine
2 Land Transport Act 1998, s 36(1)(a) and (2); maximum five years’ imprisonment or a $20,000 fine; and minimum 12 months’ disqualification.
3 Section 61(2)(a) and (3), maximum penalty five years’ imprisonment or a $20,000 fine, minimum 12 months’ disqualification.
4 New Zealand Police v Singh [2021] NZDC 18671.
it by swerving to the left. The victim, upon seeing the hatchback vehicle swerve to the left, pulled to the right directly into the path of Mr Singh’s vehicle.
[7] Mr Singh hit the victim’s car in a head on collision. The parties were transported to hospital. Methamphetamine was detected in Mr Singh’s blood sample. A search of his car revealed a glass pipe used for the consumption of methamphetamine, a cannabis grinder, a cannabis pipe and a small amount of cannabis.
[8] The 10 year old child sustained a fractured wrist and the other occupants received bruising and grazing.
Personal circumstances
[9] Mr Singh has no previous convictions. He became a New Zealand resident 11 years ago and is a seasonal worker in the kiwifruit industry.
[10] In his affidavit before the Court, Mr Singh said that he started using methamphetamine to deal with stress from work. He had been successfully running his own kiwifruit business under contract but had a falling out with his business partner. He lost the business.
[11] Between the offending and the sentencing, Mr Singh found alternative employment in the kiwifruit sector. He, his father and his wife all work in the kiwifruit industry. His family are supportive of Mr Singh so long as he remains drug free.
[12] The PAC report writer noted that Mr Singh’s new employer would provide transport to work to maintain his employment. However, as matters stand this has not turned out to be the case.
[13] Further, the writer noted “Mr Singh also presents with a high sense of entitlement and it is likely he will use language as a barrier to engage with his sentence. It was evident he felt strong resistance regarding the consequences to himself in losing his drivers’ licence.”
District Court sentencing
[14] Judge Mabey took the causing injury while driving under the influence of drugs charge as the lead offence. He considered the reckless driving charge was concurrent offending. The possession of a methamphetamine utensil charge was seen as minor and unconnected.
[15] The Judge considered that the offending was “an extremely serious event of driving” which put many people at risk. It was only good fortune that the mother and children were not killed or seriously injured. Mr Singh demonstrated poor driving for an extended period of time.
[16] With reference to Gacitua v R,5 the Judge identified the aggravating factors as being consumption of drugs or alcohol, reckless driving and a separate charge of “drug driving”, excessive speed and a persistent course of bad driving over a significant period of time on a busy road. Judge Mabey also noted that there were multiple victims, and Mr Singh caused multiple vehicles to have to take evasive action.
[17] The Judge set a starting point of two years’ imprisonment and gave a 25 per cent guilty plea discount. Although the report writer had the view that Mr Singh wished to avoid responsibility, the Judge awarded a further 20 per cent discount because Mr Singh was willing to engage in restorative justice. This discount also accounted for Mr Singh’s lack of previous convictions.
[18] Judge Mabey was of the view that home detention was not warranted as the offending was far too serious and effective deterrence could only be met by a term of imprisonment.
[19] Judge Mabey also disqualified Mr Singh from driving for two years. No further reasons were given in relation to this aspect of the sentence. It is this part of the sentence that is challenged on appeal.
5 Gacitua v R [2013] NZCA 234.
Approach on appeal
[20] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[21]In any other case, the Court must dismiss the appeal.
[22] The Court of Appeal has confirmed that s 250(2) was not intended to exclude the well-engrained concept of a “manifestly excessive” sentence.6 The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.7
Leave to appeal
[23] As I have noted, the appeal is out of time. The appellant gives the following reasons for the delay:
(a)Mr Singh was serving his sentence of imprisonment for six and a half months of the delay period. He was not able to drive at this time, and was not aware that he could not apply for a limited licence.
(b)Following release, Mr Singh took steps to apply for a limited licence. He was made aware that he was ineligible on 29 July 2022, and then took steps to appeal.
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
7 Ripia v R [2011] NZCA 101 at [15].
(c)Mr Singh has limited English. This has complicated the legal process and caused delays.
(d)The importance of the legal question in issue did not become apparent until on 29 July 2022 (after sentencing, and after he was released from prison).
[24] As I have noted, the Crown accepts there is no prejudice to it and does not oppose leave.
Appellant’s submissions
[25] Mr Hartley, for Mr Singh, submits that the two years’ disqualification from driving was excessive and submits a sentence of no more than 13 months’ disqualification was appropriate. In short, he submits the sentence is causing undue hardship which is undermining Mr Singh’s rehabilitation and reintegration.
[26] As to the general approach, Mr Hartley submits that the Court should have regard to the general ss 7 and 8 factors notwithstanding that the primary purpose of disqualification is protecting the community. The comments made in Leaupepe v Police need to be considered in light of the Zhang decision which confirmed the full range of purposes and principles of sentencing govern sentencing for all offences.8 Offenders often need to drive to achieve rehabilitation and reintegration. Davison J noted in Matangi v Police that long periods of disqualification can be so daunting for offenders that further offending results.9
[27] Additionally, the Court should recognise that other mechanisms serve to protect the public from future driving-related offending, such as Mr Singh rehabilitating himself and removing the cause of the offending, the deterrent effect of a first sentence of imprisonment and the need for him to pass a driving test to reinstate his licence.
8 Leaupepe v New Zealand Police [2015] NZHC 1766; and see Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [57]–[65].
9 Matangi v Police [2018] NZHC 1479.
[28] First, Mr Hartley submits the Judge erred in assessing the gravity of Mr Singh’s offending. He says the Judge erred in referring to excessive speed which was not stated in the summary of facts to which Mr Singh pleaded guilty. Additionally, the offending occurred over a period of three minutes which is not a significant period of time as the Judge stated. Further, although there is reference in the summary of facts to three trucks and oncoming traffic generally, it is an overstatement to say Mr Singh’s driving endangered “many” other people. It is relevant that this took place in a rural context.
[29] Mr Hartley further submits that the Judge did not consider how the custodial sentence interacted with the disqualification in relation to the purposes of sentencing. Mr Singh’s offending stemmed out of a period of methamphetamine use. A period of imprisonment means that Mr Singh would not be using methamphetamine in custody. According to the pre-sentence report, Mr Singh had in fact stopped using methamphetamine by time of sentencing: even the prospect of imprisonment had a deterrent effect. Deterrence and the rehabilitation provided by abstaining from methamphetamine should have been considered by the Judge. By the time Mr Singh was released those two factors would have (and now have) achieved the purpose of public protection. That was reinforced by Mr Singh’s clean record.
[30] Mr Hartley submits that the sentencing Court may have wrongly assumed that Mr Singh would be eligible for a limited licence. However, because his drivers’ licence had expired on 26 May 2021, he is ineligible. He is facing significant impediments in traveling to and from work, contributing to strained financial circumstances and stress for himself and his family. This is undermining his rehabilitation.
[31] Mr Hartley submits that the period of disqualification is not consistent with other cases.10 In Steel v Police, Gendall J refused to reduce Mr Steel’s period of disqualification of two years (save for credit for a driving restriction on bail).11 The effective disqualification after release was 14 months. Mr Steel had low rehabilitative
10 Steel v Police [2020] NZHC 3028; Chaaya v Police [2019] NZHC 3250; Morris v Police [2008] DCR 716 (HC); R v White HC Rotorua CRI-2009-063-509, 4 June 2010; Rohipa v New Zealand Police [2016] NZHC 839; and Cole v New Zealand Police [2013] NZHC 3083.
11 Steel v Police, above n 10.
prospects as his poor driving was caused by a treatment resistant mental illness and he had prior convictions. In contrast, Mr Singh has high rehabilitative prospects but has disproportionately been made subject to an effective disqualification period of 18 months. This period is three times as long as the post-custody period imposed in Morris v Police where the appellant had an “appalling” driving record and poor engagement with previous rehabilitative sentences.12 Mr Morris caused his passenger to suffer two neck fractures after colliding with a power pole while evading police, and he was over twice the legal limit of alcohol. He was sentenced to 15 months’ disqualification with an effective disqualification of six months after custody. His offending was not explained by a symptom of an unusually difficult period of his life as Mr Singh’s is, and there is substantial difference in their past records.
[32] In R v White, a vehicular manslaughter case, Mr White had an effective post- release disqualification of six months.13 The offending was far more serious, but as here, Mr White had good rehabilitative prospects. Similarly, in Rohipa v Police an 18 month period of disqualification, that is, a 12 month period of disqualification post release-date was upheld.14 Mr Rohipa had a history of dangerous driving and had previously breached an order for disqualification. In Cole v Police the appellant used his car as a weapon while disqualified to pin the victim against a concrete wall.15 He had extensive previous convictions for driving-related offences. Keane J reduced a disqualification period of three years to two years on appeal.
Respondent’s submissions
[33] Mr Coulson, for the Crown, submits that the two year disqualification period was correct; the Judge gave due consideration to the appropriate factors when assessing the risk to road safety and the disqualification period was proportionate.
[34] Mr Coulson submits that the Judge correctly assessed the gravity of the offending. He details the numerous vehicles that had to take evasive action or change their normal driving due to Mr Singh. Additionally, it was a prolonged period of time,
12 Morris v Police, above n 10.
13 R v White, above n 10.
14 Rohipa v Police, above n 10.
15 Cole v Police, above n 10.
as opposed to a momentary lapse of concentration or one-off instance of reckless driving. The Crown accepts that the summary of facts does not refer to excessive speed but submits the swerving, crossing of lanes and driving on the wrong side of the road aggravated the offending. The period of disqualification was well within range based on Mr Singh’s driving and was a proportionate response.
[35] Mr Coulson submits that the period of disqualification post-release is consistent with promoting public safety, which is the purpose of disqualification.16 The impact on the offender is not the focus. The post-detention release conditions including drug and alcohol treatment meet the rehabilitative purposes of the sentence while the disqualification meets the deterrence when Mr Singh is returned to the community. Rehabilitation has not been undercut.
[36] Mr Coulson submits that authorities provide limited guidance as there is a substantial variance in the periods of disqualification imposed for reckless driving causing injury and each case must turn on the specific facts and aggravating features.
[37] Additionally, the authorities cited differ from Mr Singh’s case. The offending in Steel was less serious and linked to Mr Steel’s mental health issues, and the offending in Morris lacked the reckless driving charge and drug use present in Mr Singh’s offending. Here, Mr Singh was convicted of two charges with discrete elements and his poor driving involved both reckless driving and driving while under the influence of drugs. Mr Coulson submits the circumstances of Mr Singh’s offending needed to be met with a stern response given the impact on public safety he poses to other road users.
Discussion
[38] In relation to the approach to disqualification, protection of the community is an important but not exclusive purpose.17 This is consistent with the Court of Appeal’s comments in Zhang v R, which itself recognises that some sentencing objectives will be more relevant than others in certain contexts.18 Further, care should be taken when
16 Leaupepe v Police, above n 8.
17 At [8].
18 See Zhang v R, above n 8, at [58].
engaging in a comparison approach for periods of disqualification because there is less guidance for fixing sentences above a statutorily fixed minimum (rather than maximum).19 However, consistency of approach is still desirable.20 Imposition of the least penalty that would be an effective deterrent is desirable for uniformity and is consistent with s 8(g) which provides that the Court must impose the least restrictive outcome that is appropriate in the circumstances.21
[39] I accept Mr Hartley’s submission that the Judge appears to have incorrectly referred to excessive speed as an aggravating factor of the offending. There is reference to accelerating and overtaking in the summary of facts but nothing more. There was a persistent course of bad driving as opposed to a momentary lapse of judgment, but this was not over a significantly long period of time. It is also not stated in the summary of facts that the road was busy at the time. These apparent errors may have contributed to the Judge incorrectly assessing the gravity of the offending. Mr Singh’s offending was moderately serious to serious, but it was not “extremely serious” as it was described by the Judge.
[40] It is not clear that the Judge considered either the rehabilitative purpose of sentencing or the desirability of imposing the least penalty that would be an effective deterrent when setting the period of disqualification. No reasons were given for imposing a duration twice the statutory minimum.
[41] Although the Judge made reference to Mr Singh’s clean record, the implications of this on the sentence appropriate to achieve deterrence and public safety were not laid out. Mr Singh does not have a propensity to drive recklessly or under the influence. His offending was caused by methamphetamine use which in turn was spurred by a period of increased stress owing to a business relationship breakdown. In this context while the former two sentencing principles are still relevant, the offending would be better addressed by a consideration of rehabilitation and reintegration purposes. If Mr Singh addresses the cause of his offending to prevent him repeating it in the future this will in turn fulfil the purpose of public safety.
19 Leaupepe v Police, above n 8, at [6] and [9].
20 R v Hodgson [2008] NZCA 132 at [24].
21 Eteuati v Police HC Wellington CRI-2003-485-91, 16 December 2003 at [15].
[42] Accordingly, I accept Mr Hartley’s submission that the Judge was in error when he failed to consider how the period of imprisonment interacted with the disqualification for the purposes of sentencing. Mr Singh’s rehabilitation via abstaining from methamphetamine in prison significantly addressed the root cause of his offending. Further, the long period of disqualification is hindering Mr Singh’s ability to consistently go to work – causing the very financial stress that was a driver of his offending. The Judge did not impose the least penalty that would be an effective deterrent in the circumstances.
[43] Turning to the authorities cited by Mr Hartley, I am of the view that Mr Singh’s period of disqualification is disproportionate. It is longer than offenders who had very poor driving records and low prospects of rehabilitation who engaged in similar or worse offending.
[44] I am satisfied that the period of two years’ disqualification imposed was manifestly excessive. A more appropriate term, taking into account the gravity of Mr Singh’s offending, his clean driving record, his rehabilitative prospects and the least penalty required to deter further driving offences, would be one year and one day.
[45] For completeness, Mr Singh was not subject to driving restrictions on bail and is not entitled to any credit.
Result
[46]Leave to appeal is granted.
[47]The sentence appeal is allowed.
[48] The two years’ disqualification is quashed and replaced with a disqualification term of one year and one day.
Woolford J
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