Singh v Police

[2019] NZHC 3001

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-0433

[2019] NZHC 3001

BETWEEN

NAVJOT SINGH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Date of hearing:	18 November 2019
Appearances:	H G de Groot for Mr Singh G J Fraser for the respondent
Date of judgment:	18 November 2019

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:

Hunter de Groot, Matai Chambers, Auckland Georgiana Fraser, Meredith Connell, Auckland

SINGH v NEW ZEALAND POLICE [2019] NZHC 3001 [18 November 2019]

[1]    Navjot Singh appeals his sentence of eight months’ home detention imposed by Judge N R Dawson in the District Court at Auckland on 20 September 2019,1 following Mr Singh’s guilty plea to charges of dishonest use of a document with intent to obtain a pecuniary advantage,2 and obtaining property by deception.3

Background

—offending

[2]    Mr Singh was employed by an architecture firm as its information technology manager in 2017. Several cheque forms were taken from the firm’s office over the Christmas break. On 8 and 9 February 2018, a co-offender registered a company and opened a bank account in its name. On 21 February 2018, one of the firm’s cheques was made out to the company for $80,000, forging the firm’s office manager’s signature. Mr Singh presented the cheque for payment to the company’s account on 22 February 2018. But the office manager noticed the withdrawal and, recognising the company was not one of the firm’s suppliers, instructed the bank to reverse the payment.

[3]    On 31 May 2018, Mr Singh’s employment by the firm was terminated. On 10 August 2018, Mr Singh went to a computer shop in Auckland. He purchased a computer (valued at $2,875) on the firm’s account, using a purchase order number he previously was authorised to use as its employee.

—District Court decision

[4]    I note Mr Singh initially declined to sign the consent required for an electronically monitored sentence, because he would lose his new employment. Judge Dawson advised, unless he consented, he would be sentenced to imprisonment. Sentencing was adjourned to allow Mr Singh to sign the necessary documents.

[5]    Judge Dawson treated the dishonest use of a document charge as the lead offending, justifying a starting point of 18 months’ imprisonment. He uplifted that by

1      Police v Singh [2019] NZDC 19096.

2      Crimes Act 1961, s 228(a).

3      Sections 240(1)(a) and 241(a).

two months for the obtaining property by deception charge, taking into account the totality principle. From the adjusted 20-month starting point, the Judge deducted one month for remorse (despite querying the extent of Mr Singh’s remorse)4 and a further three months to account for Mr Singh’s guilty plea, bringing the sentence to 16 months’ imprisonment.

[6]    The Judge commuted the sentence to eight months’ home detention,5 noting there was no actual loss to the firm due to the vigilance of its office manager. The Judge applied the conditions listed in the probation report and added the additional condition Mr Singh be permitted to work. The sentence was suspended until 26 September 2019 to allow Mr Singh to attend a work trip to Wellington. A reparation order of $2,875 to the firm was confirmed.

Approach to appeals against sentence

[7]    I must allow the appeal only if I am satisfied both there is an error in the sentence, and a different sentence should be imposed.6 In any other case, I must dismiss the appeal.7 The approach previously taken by courts on sentencing appeals continues to apply;8 the measure of error is the sentence be “manifestly excessive” – the principle is “well-engrained” in this Court’s approach to sentencing appeals.9 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.10

Issue on appeal

[8]    Mr Singh’s counsel, Hunter de Groot, accepts the sentence falls within the range properly justified by accepted sentencing principle. The sole contention on

4      Police v Singh, above n 1, at [10].

5      On the charge of obtaining by deception, the Judge imposed a two-month sentence of home detention, to be served concurrently.

6      Criminal Procedure Act 2011, s 250(2).

7      Section 250(3).

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

9      At [33] and [35].

10     Ripia v R [2011] NZCA 101 at [15].

appeal is that the sentence imposed “has become significantly more severe that what the Judge intended or what could be justified on ordinary sentencing principles”.

[9]    This is because, despite the condition Mr Singh be permitted to work, the restrictions of home detention mean he cannot undertake travel necessary to fulfil his employment duties. Those employment duties are described as including his responsibility across the Pacific.11 Corrections has confirmed air travel is not technically feasible due to the difficulties with the electronics of the bracelet and being unable to monitor Mr Singh. Mr Singh says his employment contract accordingly is about to be terminated and submits his employer’s 15 November 2019 letter indicating that prospect.

[10]   Mr de Groot says the sentence of eight months’ home detention thereby is manifestly excessive and a sentence of community work and supervision should instead be imposed.

Discussion

[11]   As the Crown says, a sentence appeal is not the appropriate forum to deal with Mr Singh’s concerns. The standard conditions of home detention are set out in s 80C(2) of the Sentencing Act 2002. An offender may leave the home detention residence to engage in employment, but only with approval of a probation officer.12

[12]   So far as the appeal is concerned, Mr Singh was convicted of dishonesty offences which carry maximum sentences of seven years’ imprisonment. Mr de Groot accepts, if Mr Singh was able to continue in his current employment, the end sentence “could not be criticised”. That rather suggests it is not the sentence at issue. Mr Singh’s problem is not with the sentence itself, but its application by the probation officer. I have no appellate jurisdiction over that decision.13

11     Mr Singh’s immediate concern is domestic projects in Christchurch, Rotorua, and Queenstown.

12     Sentencing Act 2002, s 80C(3)(b)(ii).

13     Barton v R [2015] NZHC 2643 at [12]–[13], citing Mitchell v R [2014] NZCA 362 at [5]. See also

Case v R [2010] NZCA 518 at [10]–[11].

[13]   Mr Singh’s offending involved a large sum of money, which only was detected due to the vigilance of the firm’s office manager. He offended twice within a short time frame, both times against his employer. An end sentence of eight months’ home detention does not fall outside of the acceptable range; the judge’s 20-month starting point is very comparable to those for similar offending.14

[14]   As to Mr Singh’s employment difficulties, Mr Singh’s probation officer is supportive of his employment, but “only in the Auckland region due to the nature of his sentence”. There is no suggestion Mr Singh would be unable to obtain another position within the IT industry, not requiring travel. Mr Singh has been convicted of two significant dishonesty offences in connection with his previous employment. Difficulties in subsequent employment are a natural consequence of such offending; the end sentence of eight months’ home detention is not manifestly excessive.

Result

[15]Mr Singh’s appeal is dismissed.

—Jagose J

14  Calder v Police [2017] NZHC 1430 (five charges; $17,200; 19-month starting point); citing Fannin v Police [2016] NZHC 168 (thirteen charges; $67,400; 15-month starting point); and Clarke v Police [2015] NZHC 1692 (six charges; $41,200; 20-month starting point).