Singh v Police
[2022] NZHC 679
•5 April 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-46
[2022] NZHC 679
BETWEEN AMIT SINGH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 April 2022 Appearances:
P Osborne
TCT Riley for the Respondent
Judgment:
5 April 2022
JUDGMENT OF GAULT J
This judgment was delivered by me on 5 April 2022 at 2:00 pm.
Registrar/Deputy Registrar
……………………………………
Parties / Solicitors:
Mr P Osborne, Phil Hamlin Barrister, Auckland
Mr TCT Riley, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau City
SINGH v POLICE [2022] NZHC 679 [5 April 2022]
[1] Mr Singh appeals against his sentence of 28 months’ imprisonment imposed by Judge D J McNaughton in the Manukau District Court on 10 February 2022.1 Mr Singh pleaded guilty to the following charges after the Judge’s sentence indication on 21 September 2021:
(a)supplying methamphetamine (x2);2
(b)possession of a methamphetamine pipe;3
(c)unlawful possession of a firearm (x2);4
(d)unlawful possession of ammunition;5 and
(e)failure to answer District Court bail (x2).6
[2] Mr Singh appeals on the basis that the Judge did not award discounts for his previous good character and time spent on EM bail.
The offending
[3] On 26 November 2020 Police stopped Mr Singh on Mahia Road, Manurewa. A cannabis bud was visible. Police executed a search without warrant. Inside a backpack they found a Glock pistol with one round in the chamber and one in the magazine clip. In another bag they found just over five grams of methamphetamine in a plastic zip lock bag and other empty zip lock bags. They also found a set of electronic scales.
[4] After obtaining an order in relation to data on Mr Singh’s mobile phone, police discovered Facebook messages offering to sell and deliver methamphetamine. There were also photographs of bags of methamphetamine with prices written on the bags.
1 Police v Singh [2022] NZDC 2213.
2 Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2)(a). Maximum penalty life imprisonment.
3 Sections 13(1)(a) and 13(3). Maximum penalty one years’ imprisonment and/or a $500 fine.
4 Arms Act 1993, s 45(1)(b). Maximum penalty four years’ imprisonment and/or a $5,000 fine.
5 Section 45(1)(b). Maximum penalty four years’ imprisonment and/or a $5,000 fine.
6 Bail Act 2000, s 38(a). Maximum penalty one years’ imprisonment or a $2,000 fine.
[5] Three days later, on 29 November 2020, Mr Singh purchased three and a half grams of methamphetamine. He divided it into 25 zip lock bags, selling approximately five – 10 to associates.
[6] On 30 November 2020, police executed a warrant to search Mr Singh’s address. There they found a loaded pump-action shotgun; 10 rounds of ammunition; methamphetamine; $1,460 in cash; scales; and multiple zip lock bags.
[7] Mr Singh was granted EM bail on 4 March 2021. He was subject to a 24 hour curfew. The occupant of the bail address revoked consent on 31 March 2021. Mr Singh was again granted EM bail to a different address on 16 April 2021. He was arrested on 15 May 2021 for breaching EM bail. On 17 May 2021 he was released back on EM bail, this time to his mother’s address.
[8] Mr Singh was arrested again in September 2021. On 25 September 2021, police executed a search warrant at his EM bail address. They located 2.5 grams of methamphetamine split across 9 ziplock bags, and $37,827 in cash. Subsequent analysis of his mobile phone revealed evidence that he had supplied a combined seven grams of methamphetamine on five occasions between 16 August 2021 and 9 September 2021. Mr Singh was charged with supplying methamphetamine and with possessing methamphetamine for supply. He has pleaded not guilty to these charges.
[9] On 17 December 2021 Mr Singh was further charged with conspiracy to injure with intent to injure. That charge arose out of an investigation into the murder of Mr Peter Rasmussen in August 2021. Mr Singh has pleaded not guilty to this charge.
District Court decision
[10] After summarising the facts, Judge McNaughton noted that the amount of methamphetamine was relatively modest: Mr Singh was essentially a street level dealer funding his own habit after losing his job. The Judge said the case fell towards the very bottom of band 2 of the sentencing bands described in Zhang v R.7 Cases in that band attract starting points of two to nine years’ imprisonment.
7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[11] The Judge referred to his sentencing indication of 21 September 2021. There he determined a starting point of two years, four months’ imprisonment for the lead charge of supplying methamphetamine. The Judge noted that the firearms charges were relatively serious – the firearms were loaded and Mr Singh was in possession on two separate occasions. He indicated that the starting point for those charges alone would be two years’ imprisonment. As submitted by the prosecutor, the Judge applied an uplift of 18 months for those charges. He considered the other charges were incidental and did not apply a further uplift. That resulted in a combined sentence (starting point) of 46 months’ imprisonment. The Judge said he would allow a 25 per cent discount for guilty pleas. In the subsequent sentence, the Judge confirmed this 25 per cent discount.
[12] The Judge said that Mr Singh was “in custody, awaiting trial in the High Court on serious matters and there are also other drug-dealing charges yet to be heard at Manukau but again involving supply of methamphetamine”.
[13] The Judge allowed a further 10 per cent discount given the offending was motivated by addiction. The Judge noted that Mr Singh had participated in some short programmes in prison, which were not especially relevant to the addiction issue, but allowed a further five per cent discount for their completion.
[14] The Judge declined further discounts for time on bail, mental health and good character, stating:
[21] As to time on electronically monitored bail, given your re-offending in exactly the same way, I am not prepared to discount the sentence at all for time on bail. … and given the repetition of your offending and even more serious, other charges that you now face, I am not prepared to discount on the basis of good character either …
[15]The end sentence was 28 months’ imprisonment.
Approach on appeal
[16] To succeed on an appeal against sentence, the appellant must satisfy this Court that there has been an error in the imposition of the sentence and that a different
sentence should be imposed.8 The Court will only intervene and substitute its own view if the final sentence is manifestly excessive or wrong in principle.9 The Court will not, ordinarily, intervene when the sentence is within the range that is properly justified by accepted sentencing principles. The focus is on the final sentence imposed, not its component parts or how that sentence was reached.10
Discussion
[17] Mr Osborne, for Mr Singh, accepted there are no issues with the starting point adopted by the Judge, nor with the uplifts and discounts applied. However, he submitted the final sentence imposed was manifestly excessive because the Judge failed to grant further discounts for:
(a)Mr Singh’s previous good character; and
(b)time spent by Mr Singh on EM bail.
[18] In particular, Mr Osborne submitted that the Judge should not have declined to award those discounts by reference to the further charges laid against Mr Singh. He noted that Mr Singh has pleaded not guilty to those charges, and submitted that Mr Singh is entitled to the presumption of innocence in relation to them.
[19] Mr Osborne submitted that if the Court accepts his submissions concerning these further discounts, the Court will have jurisdiction to sentence Mr Singh to home detention. Mr Singh is on the waitlist for a place at the Grace Foundation, so Mr Osborne seeks leave to apply for home detention if and when a suitable address becomes available.11
[20] Mr Riley, for the respondent, submitted that the Judge made no error; in any event, the end sentence was not manifestly excessive; and the appeal should be dismissed save for one technical aspect.
8 Criminal Procedure Act 2011, s 250(2).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
10 Ripia v R [2011] NZCA 101 at [15].
11 Sentencing Act 2002, s 80I.
Previous good character
[21] Mr Osborne submitted that the failure to take into account evidence of previous good character, or to regard the lack of previous convictions as the absence of an aggravating factor rather than a specific mitigating factor, amounts to an error in principle.12 He submitted that a discount in the region of 10 per cent would be appropriate to reflect Mr Singh’s previous good character.
[22] As Mr Riley submitted, a sentencing court is required to take into account “any evidence of an offender’s previous good character” to the extent it is applicable in the case.13 The Court of Appeal has identified two things as underpinning this feature of mitigation:14
(a)recognising a fall from grace is punishment in itself; and
(b)recognising the greater potential for rehabilitation where community involvement and good character bears witness to a reduced probability of re-offending.
[23] In Parkin v R,15 the Court of Appeal summarised the discussion of the matters to be considered in determining the extent of a discount for previous good character in Manawaiti v R.16 The Court first referred to a statement by William Young P that credit for good character is “very much a matter of impression” and, secondly, to three factual matters that might assist in determining the appropriate discount if one is due:
(a)the length of the period for which the defendant has exhibited good character;
(b)whether the evidence of good character consists of the absence of convictions or also includes positive contributions to society; and
12 Manawaiti v R [2013] NZCA 88; Rana v R [2014] NZCA 468.
13 Sentencing Act 2002, s 9(2)(g). The discount can apply in methamphetamine cases: see for example Fangupo v R [2020] NZCA 484.
14 Davidson v R [2011] NZCA 356 at [16].
15 Parkin v R [2018] NZCA 404 at [16].
16 Manawaiti v R [2013] NZCA 88.
(c)the need for any discount to be proportionate to the overall sentence.
[24] In Taylor v R the Court of Appeal discussed the availability of a discount for previous good character in the context of multiple offences:17
[26] Where an offender accumulates a series of offences, for which they are to be sentenced, the position is more difficult. If the defendant had no prior convictions, it might be thought the first offence in time may deserve some discount. But the subsequent accumulation of offending gives the lie to the propositions that the offender is generally of good character, and the first offence is an isolated fall from grace. It may also call in question the reality of prospective rehabilitation. A judge is entitled in those circumstances to refuse to give a good character discount.
[25] The Court went on to recognise that there may be rare cases where it is appropriate to allow a discount for good character in respect of the first offence where an offender has subsequently accumulated further offending – such as where the latter offending is very minor or distant in time from the first offence.18
[26] Mr Riley submitted that the principle in Taylor extends to the unproved further offending in this case. He submitted that the significance of the presumption of innocence is a question of weight, and here the apparent strength of the case in relation to the subsequent charges was self-evident and properly taken into account by the experienced Judge.
[27] He also sought to distinguish the Court of Appeal decision in Fangupo v R,19 where the Court said that an unproven charge did not count against Mr Fangupo, on the basis that the defendant’s offending in that case occurred while he was on trial for previous alleged offending, of which he was later acquitted.
[28] He also submitted that the mere fact Mr Singh faces new charges shows that he has continued his fall from grace and colours his reduced probability of re-offending. He submitted it would have been wholly artificial for the Judge to have ignored Mr Singh’s further charges in allowing a discount for previous good character.
17 Taylor v R [2017] NZCA 574.
18 At [29].
19 Fangupo v R [2020] NZCA 484 at [57].
[29] Taylor was dealing with the availability of a previous good character discount where an offender accumulates a series of offences. The Court was not dealing with subsequent alleged, unproved offending. That is materially different, and I do not consider Taylor is authority for eroding the presumption of innocence in this way. Although Fangupo involved a different sequence and an acquittal, I consider the same principle applies and that an unproven charge should not count against Mr Singh.
[30] Even if it were appropriate to take into account subsequent alleged offending as part of a series, the strength of the case would need to be considered having regard to the presumption of innocence. Here, the Judge referred to the “even more serious, other charges” and may have had the relevant summary of facts, but there is no suggestion he weighed the apparent strength of the case against the presumption of innocence.
[31] For these reasons, I do not accept the respondent’s submission that declining a discount for good character was justified on the basis of the subsequent alleged offending. Of course, as Mr Osborne acknowledged, if Mr Singh is convicted on the further charges, he will then no doubt face an uplift for his previous convictions.
[32] I do accept, however, that Taylor may have some application in relation to the relevant offending. Mr Singh was sentenced on a number of charges, beginning with two charges of failing to answer bail in August and September 2020. The drug and firearm offences all occurred in the period of 26 to 30 November 2020. In terms of Taylor, they may be considered a series of offences. The Judge referred to the “repetition” of the offending. Mr Osborne noted that the Judge accepted that the offending was motivated by addiction, and in those circumstances submitted that the repeat offending should not negate a discount for previous good character. However, Mr Singh received a separate 10 per cent discount for his addiction.
[33] I also accept that there was limited evidence of previous good character before the Judge, at least in terms of positive contributions to society. Mr Singh was 30 years old at the time of the offending. He had been a truck driver for 10 years prior to the COVID-19 lockdown. His only previous conviction was for carelessly operating a vehicle in 2015, which is not relevant to the current charges. There were character
references from his mother, sister and brother’s partner. They indicate that Mr Singh was a family-oriented man before his addiction. The Judge noted, however, that the cultural report included some less positive comments from Mr Singh’s wife, who left him in April 2020. The Judge said that she suggests there was a violence incident and at one point Mr Singh attended anger management, and that he was seeing other women while he and his wife were separated.
[34] Given the multiple offences, the separate discount given for addiction and the limited evidence of previous good character before the Judge, I consider the Judge was entitled to decline to give a further discount for previous good character. A modest discount could have been given but the Judge was best placed to assess this.
[35] Mr Singh’s wife has provided an email in support of Mr Singh for the appeal. She states that Mr Singh lost his job due to COVID-19, then she left with the children, and these things led to his getting involved with drugs (whereas the Judge understood Mr Singh was using drugs before the marriage broke up). In any event, I do not consider this further email materially changes the position in relation to a discount for previous good character.
Time spent on EM bail
[36] Mr Osborne submitted the Judge erred in declining a discount for Mr Singh’s time on EM bail.20 It is now common ground that Mr Singh spent a total of six months on EM bail with a 24 hour curfew, and that Mr Singh was not at fault when his EM bail was revoked in March and May 2021 for short periods.
[37] Mr Riley acknowledged that a breach of bail was not separately pursued but submitted that the new charges could be considered “non-compliance” with EM bail under s 9(3A)(c) of the Sentencing Act 2002, or “any other relevant matter” under s 9(d). He submitted the Judge was justifiably concerned about Mr Singh facing new charges for methamphetamine-related offending while he was on EM bail for the same offences. He submitted that since an assessment of a discount for time spent on EM bail is an “evaluative exercise”, the Judge was correct not to allow such a discount.
20 Sentencing Act 2002, s 9(2)(h).
[38] The issue is whether the Judge was entitled to decline a discount on the basis of the further unproven charges. In this context of compliance with EM bail conditions based on the further charges too, I consider the presumption of innocence is relevant and that unproven charges should not count against Mr Singh. Even if they could, here the Judge said “given your re-offending in exactly the same way, I am not prepared to discount the sentence at all for time on bail”, and there is no suggestion he weighed the apparent strength of the case in relation to non-compliance with EM bail conditions against the presumption of innocence.
[39] In the absence of a finding of non-compliance with EM bail conditions, I consider a discount for time spent on EM bail should have been given. There is no rule about how much of a discount should be given – no arithmetical formula that should be applied21 – although percentages ranging between 30 and 50 per cent are often used.22 It is an evaluative exercise, having regard to the factors in s 9(3A). In the circumstances, I consider a discount of two to three months would have been appropriate here.
Manifestly excessive?
[40] A reduction of three months, a little over 10 per cent, is more than tinkering and would reduce the end sentence to 25 months’ imprisonment. The respondent’s written submissions referred briefly to other components of the sentence, but I consider they fall short of indicating that the Judge was overly generous in other respects such that the end sentence was not manifestly excessive. An uplift may have been available on the basis that the 29/30 November 2020 offending occurred while Mr Singh was on bail. But a larger discount for addiction may also have been available notwithstanding Mr Riley’s submission that addiction was taken into account under Zhang. The five per cent discount for rehabilitative efforts was arguably, but not clearly, generous.
[41] But a reduction of three months does not reduce the end sentence sufficiently to allow the Court to consider whether a sentence of home detention would be the least
21 Rangi v R [2014] NZCA 524 at [10]; Chea v R [2016] NZCA 207 at [110].
22 Paora v R [2021] NZCA 559 at [53].
restrictive sentence appropriate in the circumstances and, if so, to reserve leave to apply for home detention if and when a suitable address becomes available.
[42] Finally, the respondent raised a technical issue with the Judge’s end sentence. In respect of all the drug and Arms Act charges, the Judge imposed (concurrent) sentences of 28 months’ imprisonment, whereas the maximum penalty for possession of a methamphetamine pipe is one year’s imprisonment. This could be corrected by the Judge under s 180 of the Criminal Procedure Act 2011, but Mr Riley accepted it would be more efficient to address the matter on appeal and suggested a substitute sentence of three months’ imprisonment (concurrent).
Result
[43]The appeal is allowed.
[44] I set aside the sentences. In relation to each of the supplying methamphetamine charges and the Arms Act charges, I substitute new sentences of 25 months’ imprisonment (concurrent).
[45] In relation to the possession of a methamphetamine pipe charge, I substitute a new sentence of three months’ imprisonment (concurrent).
Gault J
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