Singh v Police
[2021] NZHC 747
•1 April 2021
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 and if he wanted them back he could collect them from him in Hamilton.
[5] That night at around 11.00 pm Sukhjant Singh and three male associates travelled to Hamilton to collect the plates. At around 3.00 am the next morning, the four men were waiting in Silverdale Road, Hamilton for the appellant to bring the plates. While waiting for the appellant Sukhjant Singh and his three associates were attacked by the appellant and about7 eight unknown associates who appeared from behind a block of shops wielding baseball bats and metal poles or golf clubs, and possibly an ice hockey stick.8
[6] A confrontation developed in which Mr Jasjeet Singh, who was one of Mr Sukhjant Singh’s associates, was struck on his thigh with a baseball bat. Another of Mr Sukhjant Singh’s associates, Mr Tejveer Pumal was hit on the head and left side of his face by a blow from a baseball bat, and he collapsed onto the ground. He subsequently required medical treatment and was found to have suffered a head injury, orbital fractures, and facial lacerations. Although the police did not allege that it was definitely the appellant who was responsible for striking those blows, they say that the appellant was one of the group involved in attacking the men.
[7] A third victim, Mr Gurinder Chahal was struck on the head, arms and back with a baseball bat wielded by the appellant. He suffered fractures to his right wrist and finger. Mr Sukhjant Singh was also assaulted during the attack. He was struck on his back and wrist by an unknown offender from amongst the appellant’s group.
[8] The attack ended when the victims managed to escape to their vehicles which were set upon by the appellant and his associates using weapons and metal rods.
7 New Zealand Police v Singh [2021] NZDC 2702 at [5].
8 There is some dispute over the nature of the weapons. The police claim they were baseball bats and metal poles. The defence claims they were baseball bats, golf clubs, and an ice hockey stick.
The Pukekohe offending
[9] On 18 March 2020 the appellant offended again while on bail for the Hamilton offending.
[10] At around 8.30 pm that night two associates of the victims of the Hamilton attack were sitting together in a parked Jaguar motor vehicle in Pukekohe. The appellant and an associate then approached the vehicle. The appellant was armed with a meat cleaver, his associate was armed with a wooden stick. The appellant struck the driver’s side of the windscreen of the vehicle with the meat cleaver causing the glass to shatter and showering broken glass over the occupant in the driver’s seat, and causing cuts to his arms. The appellant still holding the meat cleaver, then attempted to open the passenger door, however the second occupant of the car managed to lock it to prevent him opening it. The two occupants of the Jaguar then drove off and the appellant and his associate ran to a nearby car and they too drove away leaving the meat cleaver, stick and the appellant’s driver’s licence behind.
[11] On 26 March 2020, police located the appellant, arrested him and seized his cell phone. While being questioned by Police in relation to the offending he was asked for the access number for his cell-phone, but declined to provide it. Mr Singh refused to give the phone’s personal access number on request.
The Judge’s sentencing decision
[12] Having reviewed the facts related to the appellant’s offending the Judge commented that the charges were serious, and that the relevant principles of sentencing were denunciation and deterrence.9
[13] The Judge referred to the tariff judgment of Nuku v R.10 He considered the Hamilton offending involved some planning and premeditation, weapons, attacks to the head, and injuries. There were no mitigating factors. The Judge accordingly
9 New Zealand Police v Singh [2021] NZDC 2702 at [16].
10 At [19]; citing Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
placed the offending in band three of Nuku, and adopted a starting point of 30 months’ imprisonment.11
[14] Considering the Pukekohe offending, the Judge noted that the appellant was carrying a meat cleaver as a weapon and used it to carry out the violent attack on the vehicle. The Judge noted that the appellant was on bail regarding the Hamilton charges at the time, and that the occupants of the Jaguar car had been drawn into the dispute which was effectively a continuation of the Hamilton offending. The Judge considered that taken together with the appellant’s failure to co-operate with the Police search of his cell-phone, the Pukekohe offending could on its own have warranted a sentence of 12-15 months’ imprisonment. Accounting for totality, the Judge uplifted the original starting point by ten months to arrive a total of 40 months’ imprisonment.
[15] Turning to mitigating factors, the Judge noted that the appellant entered pleas of guilty to the charges in respect of the Hamilton offending on the day of his trial, being a year after his first appearance in Court on those charges. The Judge also noted that the appellant had entered pleas of guilty to the Pukekohe related charges at a sentence indication hearing on 19 October 2020. The Judge allowed a discount of 10 per-cent for the appellant’s guilty pleas. As the appellant had spent nine months on EM bail with restrictive conditions, the Judge also allowed a three-month discount, which is a 7.5 per-cent reduction off the 40 month starting point he adopted. Finally, the Judge gave a further discount of ten per-cent for: a lack of previous convictions; having shown a “bit of remorse”; and his willingness to attend restorative justice.12
[16] The appellant’s counsel also sought a 15 per-cent discount to recognise that he would be deported to India after serving his sentence. Counsel submitted that having regard to the COVID-19 situation in India and its effect on the Indian economy, Mr Singh’s future following deportation would be “bleak”.13 Judge Clark held however that deportation was a risk the appellant ran, and an inevitable consequence of his convictions. It did not merit allowing a sentence discount.14
11 At [17]-[19].
12 At [23]-[25].
13 At [26].
14 At [27]
[17] The Judge accordingly imposed an end sentence of 29 months’ imprisonment, making him ineligible for home detention.15
Submissions on appeal
Appellant
[18] Mr McKenna on behalf of the appellant submits the Judge erred in not taking into account Mr Singh’s background as an immigrant with limited English and without any family residing here in New Zealand. Counsel refers to Zhang as authority for the proposition that:16 isolation of and denial of family support to foreign nationals imprisoned for offending may be treated as a mitigating factor where it makes the sentence more difficult than is typical, to bear. Mr McKenna also refers to s 8(h) and 8(i), and notes that the sentencing Judge was required to take the matters referred to in those statutory provisions into account as being relevant to the appropriate sentence to be imposed.
[19] He submits that the appellant’s background was causatively linked to his offending as, having fallen out with his flatmates, the appellant had no family to turn to for support, and no pro-social guidance to rely on. Mr McKenna also submits that this absence of support will make the appellant’s imprisonment more onerous for him than would be the case for a New Zealand resident, and because of his limited English, he will struggle to communicate with Corrections Officers, form support networks in prison, and take part in courses and prison work.
[20] Counsel refers to R v Anchondo, in which an American defendant received a 10 per-cent discount for serving a sentence at a geographical distance from his family and because he will also face difficulties due to his limited ability to communicate in English.17 Mr McKenna initially submitted that the appellant should be given a larger discount than the ten per-cent allowed in Anchondo saying that these factors in combination warrant a discount of 15 per-cent, or six months. However at the hearing of the appeal he withdrew that submission and instead submitted that the appellant
15 At [28].
16 Zhang v R [2019] NZCA 507 at [163], citing: R v Yung [2017] NZHC 895 at [6]; and R v Yuen
[2016] NZHC 571 at [15].
17 R v Anchondo [2018] NZHC 1978.
should be given a discount of between five and seven per-cent to recognise the greater degree of hardship imposed on him by serving a prison sentence in a foreign jurisdiction where he will be separated from support from his family, and also because his limited English would make service prison sentence disproportionately severe for him.
[21] Similarly, Mr McKenna initially submitted that a further discount would result in the appellant receiving an end sentence that would make him eligible for a sentence of home detention. However, at the hearing of the appeal Mr McKenna did not pursue that submission and he accepts that should the appellant be given an additional discount, he will not be eligible for a sentence of home detention.
Respondent
[22] Mr Harris for the respondent submits that the sentence imposed was within the range available to the Judge. Counsel acknowledges the Sentencing Act and several Court of Appeal cases which allow for a discount where the circumstances of the offender would make imprisonment more onerous.18 Mr Harris submits however that the appellate guidance provides that hardship must be established to warrant a discount,19 and he submits that there is no evidence before the Court that imprisonment will be disproportionately severe for the appellant. Mr Harris further submits that here the hardships relied on by the appellant are “speculative”. The Court of Appeal in R v Chen, referred to by the Court of Appeal in Machado-Pereira which is cited and relied on by Mr Harris, said:20 “deterrence will not be achieved if leniency is shown to those who run the risk of being imprisoned far from families.”
[23] Mr Harris notes 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.
18 Sentencing Act 2002, s 8(h); Machado-Pereira v R [2015] NZCA 423; and Fukofuka v R [2019] NZCA 290. In relation to any suggested hardship to the appellant’s family, Mr Harris refers me to McGregor v R [2015] NZCA 565. Mr Harris also refers me to an example of a successful “hardship” appeal to contrast against the present appeal: Zheng v R [2015] NZCA 451. Here (see [70]-[73]) where psychiatric reports outlined the appellant’s demonstrable mental illness and the fact the appellant had recently self-harmed.
19 Fukofuka v R [2019] NZCA 290 at [49].
20 R v Chen [2009] NZCA 445, [2010] 2 NZLR 158 at [174]-[175].
He submits that against the backdrop of the serious offending, whilst custody may be difficult for Mr Singh it is a natural consequence for criminal offending of this kind.
[24] Mr Harris in his written submissions said that Judge Clark did not apply an uplift to take account of the appellant’s offending while on bail, however at the hearing of the appeal he accepted that that the Judge had taken that factor into account.
[25] Mr Harris submits the sentence imposed was in range and has not been shown by the appellant to be manifestly excessive. He accordingly submits that the appeal should be dismissed.
Approach on appeal
[26] This first appeal against sentence is brought as of right under s 244 of the Criminal Procedure Act 2011. The Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed and that a different sentence should be imposed.21 Otherwise, the appeal must be dismissed.22
[27] The Court on appeal does not simply substitute its own evaluation of the appropriate sentence. Rather, it must be satisfied there was an error “whether intrinsically, or as a result of additional material submitted”23 on appeal, in the sense that the end sentence was manifestly excessive having regard to ordinary sentencing principles,24 and only then determining whether another sentence should be imposed.25 The focus in considering whether a different sentence should be imposed is on the end sentence imposed, rather than the process by which it is reached.26
Discussion
[28] As I have said, the respondent submitted that the Judge did not apply an uplift on account of the appellant’s offending while on bail. In assessing the starting point
21 Criminal Procedure Act 2011, s 250(2).
22 Section 250(3).
23 R v Shipton [2007] 2 NZLR 218 (CA) at [139], approved after the commencement of the Criminal Procedure Act 2011 in Tutakangahau v R [2014] NZCA 279 at [30].
24 Tutakangahau v R [2014] NZCA 279 at [35]-[36].
25 At [30]-[35].
26 Islam v R [2020] NZCA 140 at [32].
for that offending, the Judge listed its aggravating factors: “You were carrying an offensive weapon, you were on bail and prepared to act in a violent way”.27 The Judge when referring to the Pukekohe offending also said: “It is significant that at that time you were on bail for the first lot of Hamilton charges.”28 Although he did not expressly apply a discrete uplift for offending while on bail I consider it is nevertheless clear that the Judge correctly included it in his assessment of the starting point for the Pukekohe offending.
[29] As I have noted Mr McKenna initially relied on Anchondo as authority for his submission that a 10 per-cent discount for serving a sentence in a foreign country from his family was also appropriate for the appellant. He said that as Mr Anchondo was an American with presumably fluent English, the appellant deserved a higher discount to account for his greater expected hardship.
[30] I note however that Lang J gave Mr Anchondo a 10 per-cent discount for the combined factors of remorse, lack of previous convictions and distance from family. Referring to the distance from family factor, Lang J noted:29
The latter factor can only be given limited weight, however, because as soon as you agreed to become involved in this enterprise you must have known that you ran the risk of going to prison in a foreign country for a significant period. I am prepared to provide an allowance of seven months, or around ten per- cent, to reflect these factors
[31] I infer from Lang J’s remarks that the discount he allowed for the additional hardships resulting from imprisonment in a foreign country, would be modest and certainly well below that being initially sought on the appellant’s behalf. Judge Clark gave Mr Singh discounts for remorse and lack of previous convictions, and Mr Singh does not challenge these.
[32] Mr Harris relies on Machado-Pereira as showing that more obvious hardship is required to be shown in order to justify a discount for hardship caused to an overseas national serving a sentence of imprisonment in New Zealand. In that case the defendant faced a long sentence, had no connection to New Zealand, and his mother
27 New Zealand Police v Singh [2021] NZDC 2702 at [22].
28 At [20].
29 R v Anchondo [2018] NZHC 1978 at [23].
was unwell.30 It was a drug importation case decided before Zhang and accordingly little weight was placed on personal mitigating factors.
[33] Mr Harris also relies on McGregor v R, in which personal hardship was less relevant when sentencing for serious, premeditated violence. But again, that case concerned hardship for the defendant’s family, rather than the defendant personally as is argued here.31
[34] Fukofuka v R dealt with both hardship to the defendant’s children, and hardship for the defendant if they were separated. Concerning the latter, the Court stated such hardship was:32
…a natural consequence of serious criminal offending. This Court has said that dislocation from one's family, even in cases where the gulf of separation spans different countries, should only be take into account if there is evidence that imprisonment will be disproportionately severe for a particular offender. In Mr Fukofuka's case, there is no such evidence. It follows that no discount for this factor is available.
[35] In de Macedo v R the defendant imported cocaine in exchange for an all- expenses-paid holiday to New Zealand. He too had no connection to the country, rudimentary English and no understanding of local culture or social norms.33 The Court of Appeal gave a discount of eight per-cent for this, from a 12-year starting point.34
[36] In Sami v R, the defendant had killed a child in her care in circumstances described as being a momentary lapse of control and was convicted of manslaughter.35 The Court of Appeal distinguished drug importation cases, and found there was little need for personal deterrence.36 She had been in New Zealand long enough to build some connections and perhaps aimed to make it her home.37 The Court found that
30 Machado-Pereira v R [2015] NZCA 423 at [12].
31 McGregor v R [2015] NZCA 565 at [46].
32 Fukofuka v R [2019] NZCA 290 at [49].
33 de Macedo v R [2020] NZCA 132 at [9]-[11].
34 At [26].
35 Sami v R [2019] NZCA 340, (2019) 29 CRNZ 252 at [64].
36 At [66].
37 At [67].
Ms Sami “did present a distinctive combination of factors that merited recognition”,38 and the combination of these factors, namely: her youth,39 family abroad, and young daughter warranted a six-month discount.40
[37] In Sami the appellant’s “distinctive combination of circumstances”41 warranted a discount, and in each of the other the cases I have referred to, distinctive circumstances were identified clearly causing hardship.
[38] Mr McKenna also says that the appellant’s limited ability with English is a factor that will make his serving a prison sentence disproportionately more severe for him because of communication difficulties he may encounter. He submits that the appellant’s limited ability with English is evident from the fact that he required an interpreter at Court, however no evidence is presented in support of the submission.
[39] While none of the cases Mr McKenna relies on deal with hardship caused by a language barrier, I note that the Court of Appeal addressed the issue in Chan v R.42 In that case the defendant was arrested for drug importation shortly after arriving in New Zealand. He had no family or friends in New Zealand, and very limited ability to communicate in English. His father died before sentencing and he expected never to see his mother again. His wife and children lived overseas. The Court considered these combined factors warranted a discount of five per-cent.43
[40] I consider that the fact that the appellant is to serve a prison sentence in a foreign country where he will be unable to access any family support from members of his family in India, will make the serving of his sentence disproportionately more severe for him than would be the case were he a permanent resident of New Zealand. In my view the appellant’s limited ability with English is not a significant factor in this context as the appellant has lived in New Zealand for more than three years, and while it does not necessarily follow that he is able to speak English fluently, the fact that he has been employed in a bakery business for most of that time where he has been
38 At [67].
39 She was 18 at the time. Mr Singh was 23 to 24 during his offending.
40 Sami v R [2019] NZCA 340, (2019) 29 CRNZ 252 at [67].
41 At [67].
42 Chan v R [2020] NZCA 486.
43 At [24].
required to communicate in English means that it is unlikely that he would be unable to communicate adequately with prison staff.
[41] I am however satisfied 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. 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.
[42] I consider 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. I find 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.
[43] In my view 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 deduction of that further discount yields an end sentence of 27 month’s imprisonment.
[44] I consider 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”.44 I therefore find that the sentence of 29 months’ imprisonment imposed by the Judge was manifestly excessive, and that a different sentence ought be imposed.
44 Haereroa v R [2020] NZCA 169 at [33].
[45] I shall accordingly allow the appeal and quash the sentence of 29 months and substitute a sentence of imprisonment of 27 months.
Result
[46]The appeal is allowed.
[47] The sentence of 29 months imprisonment imposed by the District Court Judge is quashed and I substitute a sentence of 27 months’ imprisonment.
Paul Davison J