Singh v Police - [2022] NZHC 679

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…

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 Singh v Police

Details

AGLC: Singh v Police [2022] NZHC 679
Case: [2022] NZHC 679
Decision Date: 5 April 2022

CaseChat Overview and Summary

Amit Singh appeals against his sentence of 28 months’ imprisonment imposed by the Manukau District Court, which he argues was manifestly excessive. The appeal focuses on two specific discounts the sentencing Judge declined to award: one for Mr Singh’s previous good character and the other for the time he spent on electronically monitored (EM) bail. The appeal was heard in the High Court by Gault J, who found that the sentence was not manifestly excessive overall but did identify errors in the Judge’s refusal to consider the discounts. The court concluded that a discount for time spent on EM bail was appropriate, and the sentence should have been reduced accordingly. However, the court found that the Judge was entitled to decline to give a further discount for previous good character.

The court held that the Judge’s refusal to award a discount for good character was not justified by the further charges Mr Singh faced, as the presumption of innocence means unproven charges should not count against him. The court found that even if it were appropriate to consider the further charges as part of a series of offences, the Judge had not adequately weighed the strength of the case against the presumption of innocence. The court also found that there was limited evidence of Mr Singh’s previous good character, and that the Judge was entitled to decline a further discount in the circumstances.

The court held that the Judge was not entitled to decline a discount for time spent on EM bail on the basis of the further charges. The court found that the presumption of innocence means unproven charges should not count against Mr Singh when considering his compliance with EM bail conditions. The court considered that a discount of two to three months would have been appropriate. The court concluded that while a reduction of three months was more than tinkering, it did not reduce the end sentence sufficiently to allow the court to consider whether a sentence of home detention would be the least restrictive sentence appropriate in the circumstances.

The appeal is allowed. The sentences are set aside, and new sentences are substituted: 25 months’ imprisonment (concurrent) for the supplying methamphetamine charges and the Arms Act charges, and three months’ imprisonment (concurrent) for the possession of a methamphetamine pipe charge.

Orders