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Singh v Police

Singh v Police

Case [2021] NZHC 747 1 April 2021

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2021-419-14

[2021] NZHC 747

BETWEEN
HARINDER SINGH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 March 2021

Appearances:

S A McKenna & A J Greaves for Appellant B B Harris for Respondent

Judgment:

1 April 2021

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 1 April 2021 at 4:45 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
McKenna King, Hamilton

SINGH v POLICE [2021] NZHC 747 [1 April 2021]

[1] On 11 February 2021, Judge S R Clark in the District Court at Hamilton1 sentenced Mr Harinder Singh (the appellant) to concurrent terms of 29 months’ imprisonment on three charges, namely: injuring the first victim with reckless disregard;2 and two charges of assault with a weapon relating to two further victims.3 The Judge also sentenced the appellant to terms of six months’ imprisonment on another charge of assault with a weapon relating to a fourth victim, and on a charge of possessing an offensive weapon.4 Finally, the Judge sentenced the appellant to terms of two months’ imprisonment on a charge of wilful damage of a motor vehicle,5 and on a charge of failing without reasonable excuse to assist a police constable to exercise a search.6 The Judge ordered that all terms of imprisonment are to be served concurrently.

[2] The appellant, now aged 25, appeals against the sentence imposed on the grounds that the Judge erred by failing to take a relevant personal mitigating factor into account resulting in the imposition of a manifestly excessive sentence. The appellant submits that a further reduction of six months should be applied to the sentence imposed and that an end sentence of home detention should appropriately be imposed.

Offending

[3]The seven charges arise from two sets of offending.

The Hamilton offending

[4] The appellant’s offending is described in the Police summary of facts. For several years prior to the offending the appellant and Sukhjant Singh had been flatmates together living at a house in Manukau. During that time there were ongoing issues between them regarding the ownership of some personal property. When the appellant moved out of the flat, Sukhjant Singh retained a set of personalised vehicle

1      New Zealand Police v Singh [2021] NZDC 2702.
2      Crimes Act 1961, s 189(2). Maximum penalty: 5 years’ imprisonment.
3      Crimes Act 1961, s 202C. Maximum penalty: 5 years’ imprisonment.
4      Crimes Act 1961, s 202A(4)(b). Maximum penalty: 3 years’ imprisonment.
5      Summary Offences Act 1981, s 11. Maximum penalty: 3 months’ imprisonment or fine not exceeding $2000.
6      Search and Surveillance Act 2012, s 178. Maximum penalty: 3 months’ imprisonment.

licence plates that belonged to him but which the appellant considered were his. On 17 August 2019 the appellant removed the personalised plates from Sukhjant Singh’s vehicle without his consent. Then on 24 August 2019 the appellant contacted Sukhjant Singh and told him that he had the plates…

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 [2021] NZHC 747
Case: [2021] NZHC 747
Decision Date: 1 April 2021

CaseChat Overview and Summary

Singh appeals against his sentence, arguing that the District Court Judge erred by not considering his personal mitigating factors, resulting in a manifestly excessive sentence. Singh argues that the Judge should have considered that he is an immigrant with limited English proficiency and no family in New Zealand. Singh contends that these factors will make serving a prison sentence disproportionately severe for him, and that a discount of six months should be applied, resulting in a sentence of home detention. The Police submit that the sentence imposed was within the range available to the Judge, and that there is no evidence before the Court that imprisonment will be disproportionately severe for the appellant. The Police submit that the appellant's offending is characterised by attacks to the head, involving the use of a weapon, the presence of associates, and harm to victims. The Police submit that against the backdrop of the serious offending, while custody may be difficult for Singh, it is a natural consequence for criminal offending of this kind.

The Court finds that the Judge erred by failing to address the issue of the effect of the appellant serving a prison sentence separated from the support of any members of his family. The Court finds that this is not a case of the kind referred to by Lang J in Anchondo where the offending involved the defendant coming into New Zealand for the purpose of committing an offence knowing that if he was apprehended he would be facing imprisonment in a foreign country, and as a consequence the hardship of serving a sentence in a foreign country could only be given limited weight. Here the appellant had been residing in New Zealand pursuant to a visa which entitled him to undertake employment and the feature identified in Anchondo that led to only limited weight being given to the additional hardship of serving a sentence of imprisonment in a foreign country, separated from family support, does not apply. The Court finds that the Judge ought to have specifically addressed the issue of the additional hardship to the appellant of serving a term of imprisonment in New Zealand without any family support being available to him. The Court finds that as it is a circumstance that would cause the sentence to be served by the appellant to be disproportionately more severe for him than would otherwise be the case, the Judge erred by failing to address it and take it into account. The Court finds that this factor warrants allowing a further discount of five per-cent, which is two months of the starting point of 40 months’ imprisonment adopted by the Judge. The Court finds that a reduction of two months in relation to a 29 month sentence of imprisonment is material and adjusting the sentence would not amount to “tinkering.” The Court finds that the sentence of 29 months’ imprisonment imposed by the Judge was manifestly excessive, and that a different sentence ought be imposed.

The appeal is allowed. The sentence of 29 months imprisonment imposed by the District Court Judge is quashed and I substitute a sentence of 27 months’ imprisonment.

Orders