Singh v Police

[2019] NZHC 2985

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-121

[2019] NZHC 2985

BETWEEN

GAGANDEEP SINGH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	12 November 2019
Appearances:	A Holland for the Appellant C Piho for the Respondent
Judgment:	15 November 2019

JUDGMENT OF GORDON J

This judgment was delivered by me on 15 November 2019 at 3.30 pm

Registrar/Deputy Registrar Date:

Solicitors:           Crown Solicitor, Manukau, Auckland Counsel:  A Holland, Auckland

SINGH v POLICE [2019] NZHC 2985 [15 November 2019]

Introduction

[1]                 The appellant, Gagandeep Singh, pleaded guilty to a charge of male assaults female at his first appearance.1 His application to be discharged without conviction was declined.2 He now appeals that decision.

Background

[2]                 At the time of the offending, Mr Singh was 27 years old. He and the victim had been in a relationship for around two years.

[3]                 The police summary of facts states that, on 4 April 2018, Mr Singh went to the victim’s address and parked outside. The victim got into Mr Singh’s car and the two started arguing over a social media account. The argument escalated, and Mr Singh punched the victim in the right eye with a closed fist. He then drove the victim to Middlemore Hospital where she received treatment for her injuries.

[4]The District Court Judge described the victim’s injuries as follows:3

[3]   She received a cut about her right eyebrow and a bruised eye which   she was, at the time the summary was signed, unable to open due to swelling. I have had the benefit of also viewing photographs provided to me of the injuries sustained and it is a significant injury to the victim’s eye.

[5]Mr Singh pleaded guilty at an early stage.

District Court

[6]                 On 4 March 2019, Mr Singh’s application for discharge without conviction under s 106 of the Sentencing Act 2002 (the Act) was heard in the District Court at Manukau. In assessing the application, the Judge undertook the standard three-step analysis.4

[7]First, as to the gravity of the offending, the Judge said:

1      Crimes Act 1961, s 194(b). Maximum penalty: two years’ imprisonment.

2      Police v Singh [2019] NZDC 3954 [Decision on appeal].

3 At [3].

4 At [7].

[7]        … I must assess the seriousness of the offending. When I look at the injuries sustained by the victim, this was no minor punch. This was a significant blow causing a cut and a significant injury to the victim’s right eye, as I say as is shown in the photograph. I therefore consider it at least of moderate seriousness.

(emphasis added)

[8]Secondly, as to the consequences of conviction, the Judge said:

[9]        The first is your desire to join the New Zealand Police. Whilst the affirmation does not record it, I accept that Mr Johannson [counsel for the defendant] says that you had in fact applied to join the New Zealand Police force in 2016, the year before this incident had occurred. You have also since taken some steps to complete the requirements of those wishing to join the police.

[10]      The second issue is that you wish to apply for New Zealand citizenship. You have residence in New Zealand at the moment.  In relation to each of those matters, the police have commented and I have questioned your lawyer regarding those matters, that insofar as the application to join the New Zealand Police is concerned, it is accepted that the conviction would not be an absolute bar to you joining and that the police would in any event find out about this charge as it must be disclosed to them so they can check out whether such a conviction would be a bar to you joining. …

[11]      Insofar as citizenship and your resident status is concerned, apparently you have recently had it confirmed that a conviction will not result in your residence status being revoked. A conviction may however require that you have to wait some three years before you can apply for New Zealand citizenship. There is some reference to your family situation however there is nothing stated which would, in my view, either individually or together, amount to reasons which would amount to consequences that are such that the test under s 106 and 107 would be met.

[9]                  Thirdly, as to whether the consequences were out of all proportion to the gravity of the offending, the Judge held they were not.

[10]              The Judge therefore declined the application for a discharge without conviction. However, he noted that taking into account Mr Singh’s previous good record and the steps taken in mitigation — including an eight-week stopping violence programme, attending a successful restorative justice conference, and completing volunteer work for a local Sikh temple — it was a sufficient penalty to record the conviction and enter a good behaviour bond.5

5 At [13].

Approach on appeal

Section 232 of the Criminal Procedure Act 2011

[11]              An appeal against a refusal to grant a discharge without conviction under s 106 of the Act is properly characterised as a composite appeal against conviction and sentence under s 232 of the Criminal Procedure Act 2011 (CPA).6 An appeal against conviction proceeds by way of rehearing.7

[12]              Under s 232(2), the court must allow the appeal if it is satisfied that, in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any other reason. A “miscarriage of justice” is defined in s 232(4) as an error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or resulted in an unfair trial.8

[13]              There will have been a miscarriage of justice if there was a material error by the judge in entering a conviction (s 232(2)(b)); and there will have been a miscarriage of justice “for any reason” if the Judge erred in applying the principles under s 107 of the Act (s 232(2)(c)).9

[14]              The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment which can be subject to appeal on normal appellate principles.10 If an appellate court comes to a different view on the evidence, the trial Judge necessarily will have erred and the appeal must be allowed.11 But the appellant must show that an error has been made; the appeal court is not to consider the evidence de novo.12

6      Jackson v R [2016] NZCA 627 at [16].

7      Sena v Police [2019] NZSC 55 at [32].

8      Criminal Procedure Act 2011, s 232(5): “In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.”

9      Jackson v R, above n 6, at [12].

10     R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8] at [11] citing Rajamani v R [2007] NZSC 68, [2008] 1 NZLR 723 at [5].

11     Sena v Police, above n 7, at [38].

12 At [38].

Sections 106 and 107 of the Sentencing Act 2002

[15]              Section 106 of the Act confers jurisdiction on a court to discharge an offender without conviction. Section 107 provides:

107 Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[16]              The law in relation to ss 106 and 107 is succinctly stated by the Court of Appeal in R v Taulapapa:13

[22]      It is settled law that a court considering a discharge should: examine the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender; identify the direct and indirect consequences of conviction; and consider whether those consequences are “out of all proportion” to the gravity of the offence. Only then does it move to considering the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen: this standard recognises that the court is assessing the likelihood of something that may happen in the future.

[23]      The offender should ordinarily put information before the court to provide a factual basis for a decision that the test has been satisfied. There is no legal onus on the offender to do so however, and the standard of proof in s 107 is simply that the judge be satisfied that the requirements of the section are met.

(footnotes omitted)

[17]              In assessing the gravity of the offence, the mitigating factors of the offender that may be considered include guilty pleas, expressions of remorse, and the court’s assessment of how likely it is that the offender will reoffend, the victims’ perspective, and any consequence already suffered by way of reparation, community work or publicity — in other words, anything that may affect the court’s subsequent assessment of overall culpability.14

[18]              There is no onus on an offender to establish that the disproportionality test has been met. The requirement is simply that the court is to be satisfied it has been met.

13 R v Taulapapa [2018] NZCA 414.

14 R v Hughes, above n 10, at [27]–[28] citing with approval Delaney v Police HC Wellington CRI- 2005-485-22, 22 April 2005 at [29] and Montgomery v Police HC Palmerston North CRI-2005- 454-70, 11 April 2006 at [10].

The word “satisfied” calls for the exercise of judgment by the court and it is inapt to import notions of the burden and standard of proof.15 It is sufficient if the court is satisfied that there is a “real and appreciable risk” that adverse consequences will flow from conviction.16

Discussion

[19]              It will be recalled that, in the District Court, the consequences Mr Singh relied on were the loss of a potential career in the Police and a delay in being able to apply for citizenship. Mr Singh no longer pursues those grounds but now relies on a new ground, namely that a conviction will be a significant impediment to his current and future work opportunities. In particular, after his conviction, Mr Singh changed his employment from the transport company where he was working as a driver to another transport company. His position there has been terminated because of his conviction. He now says that his employment and progression in the transport industry is a new consequence for the court to consider.

Fresh evidence

[20]              Mr Holland, for Mr Singh, seeks leave to adduce two new affidavits from   Mr Singh, which are said to contain “fresh evidence”. The Crown opposes leave on the basis that the evidence is neither “fresh” nor cogent; it says this is a change of circumstances, not fresh evidence.

[21]              Under s 335(2) of the CPA, this Court, on appeal, can conduct its own inquiry into evidential matters if it considers it necessary or expedient in the interests of justice to do so.

[22]              Applications for fresh evidence are governed by r 8.8 of the Criminal Procedure Rules 2012. There is technical non-compliance with that rule. The notice of appeal does not set out the particulars of the further evidence. There was no memorandum filed and served within 30 working days after the notice of appeal was

15     R v Hughes, above n 10, at [49].

16     Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20]; and DC (CA47/2013) v R [2013] NZCA 255 at [43].

filed setting out the particulars of the further evidence.  The submissions are dated  16 September 2019; the notice of appeal was filed 1 April 2019. There is similarly no affidavit filed within the required 30 working days after the filing of the notice of appeal. Mr Singh’s first affidavit was sworn on 16 September 2019 and his second affidavit was sworn on 12 November 2019.

[23]              I will nevertheless consider the application on its merits. The test for adducing fresh evidence is set out by the Privy Council in Lundy v R:17

[120] … If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.

[24]The overriding test is what is required in the interests of justice.18

[25]              Mr Singh deposes that, at the time of the application in the District Court, he was working in the transport sector as a driver. He says he did not have any meaningful discussions with his (then) lawyer about the possible impact a violence conviction might have on his job or his ability to successfully gain work in the future. He says, however, since the application was declined, he has realised that a conviction for violence is going to have a direct impact on his ability to keep working.

[26]              Mr Singh says that soon after he received his conviction, he was offered a new role with a transport and logistics company. The role involved a significant increase in responsibilities and he was keen to take it. However, Mr Singh says when he disclosed his conviction to the company owner he was reluctant to employ him and only did so on the basis that Mr Singh told him he was appealing his sentence. The owner apparently agreed to employ him subject to the outcome of the appeal.

[27]              In his second affidavit, Mr Singh deposes that the owner changed his mind and terminated his position on the basis of Mr Singh’s criminal conviction. He says that

17     Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.

18     At [119]; and Bain v R [2007] UKPC 33 at [34].

he has been unemployed since the end of September 2019. He has applied for between eight to 10 positions, primarily with call centres or in transport roles because he has had experience working in such organisations in the past. Each job application required that he disclose his recent criminal conviction. Mr Singh says that after making this disclosure and submitting his job application, he has been unable to obtain a single job interview.

[28]              Mr Holland submits that it is in the interests of justice for the fresh evidence to be admitted. Mr Singh was unaware of the potential employment consequences when he applied for his discharge without conviction but it has now become apparent that a conviction for violence has had a direct and detrimental impact on his employment prospects. Mr Holland relies on three judgments in this Court where evidence of further circumstances, not identified at the time of conviction, were admitted on appeal.19

[29]              Mr Piho, for the respondent, submits that the evidence is neither fresh nor cogent. He submits that the appellant has created the difficulty that he is now relying on. He made the choice to change jobs to one dependent on a successful discharge without conviction. However, Mr Piho, in oral submissions, made it clear that the respondent does not suggest that Mr Singh has deliberately manipulated the situation.

[30]              In my view, the evidence is not fresh. Evidence of difficulties in employment in the transport sector could have been advanced by Mr Singh at the time the application was made in the District Court. However, it is credible. Although it is not fresh, I accept it is in the interests of justice for this Court to consider the two affidavits sworn by Mr Singh, and I admit them as evidence on the appeal.

[31]On that basis, I now turn to the three-stage analysis for s 106 applications:20

(a)the gravity of the offence;

(b)the direct and indirect consequences of a conviction; and

19     Kumar v New Zealand Police [2015] NZHC 3293; Miller v New Zealand Police [2017] NZHC 2183; and Richardson v Police [2015] NZHC 1431.

20     Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [8].

(c)whether those consequences are out of all proportion to the gravity of the offence.

Gravity of the offence

[32]              Mr Holland submits that the offending behaviour itself is within the moderate range, acknowledging the problematic nature of domestic violence and there being a strike to the head.

[33]              Mr Singh explains the background to his offending as follows. He says that he and the victim were in a relationship and he believed they were committed to building a future together. He says he became jealous when he found out the victim had had an affair. It hurt his feelings and he found himself going into an emotional spiral. He says that on the day of the incident he had planned to talk to her about their relationship. But when he saw that she was accessing a dating site on her phone and messaging another male, he lost his temper. He says this is the worst thing that he has ever done in his life and he is very embarrassed about it. He says he is extremely sorry for what he did to the victim. She did not deserve to be assaulted by him. He accepts full responsibility for what happened.

[34]              However, Mr Holland goes on to submit that when one takes into account the post-offence efforts by Mr Singh and his personal circumstances, then a proper assessment of the gravity is low to moderate.

[35]              Mr Holland refers to the Judge’s assessment of the offending itself as being “at least of moderate seriousness” and submits the Judge erred as he failed to make a specific finding as to gravity after accounting for mitigating factors.

[36]In an early part of the decision, the Judge said the following:

[4] To your credit, you pleaded guilty at an early stage. You took responsibility for your actions. The matters went off and you completed an anti-violence programme through Shine. That is also something I can take into account. You were at the time 27 years of age without any previous convictions. In addition, it appears that you have volunteered at a Sikh temple in Papatoetoe. That is also something I do take into account.

[37]Then the Judge said:

[7]        In terms of the application for a discharge without conviction, the test that must be applied is that under s 106 and 107 of the Sentencing Act 2002, it is well recognised that test requires me to carry out a three-step test. Firstly I must assess the seriousness of the offending. When I look at the injuries sustained by the victim, this was no minor punch. This was a significant blow causing a cut and a significant injury to the victim’s right eye, as I say as is shown in the photograph. I therefore consider it at least of moderate seriousness.

[8]        I have already pointed out some of the factors that can be taken into account on your behalf: your previous good record, your early guilty plea and the steps that you have taken. In addition, I have an affirmation that you have signed and submissions have been filed on your behalf. The affirmation that you signed really sets out two substantive grounds for the application to be granted.

[38]              In my view, when the decision is read as a whole, I consider the Judge did take the mitigating factors into account. It is not strictly necessary that those factors be considered at the first stage. In Z (CA47/2012) v R, the Court of Appeal said:21

[27]      For our part, we consider that there is much to be said for the approach adopted by the Divisional Court in A(CA747/2010). That is: when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender …

[28]      … However, while consideration of [the offender’s personal and aggravating and mitigating] circumstances must, in our view, be carried out in the context of the s 107 analysis, whether this occurs at the first or third step of that analysis is not of great significance. Provided that all relevant factors are considered in the s 107 context, the precise point at which they are considered is unlikely to be material.

[39]              However, I respectfully disagree with the District Court Judge in his assessment of gravity. I accept Mr Holland’s submission that it can be characterised as low to moderate. I say that for the following reasons:

(a)Mr Singh has no previous convictions.

(b)Immediately after the incident, Mr Singh drove the victim to Middlemore Hospital so she could receive treatment for bruising around her eye. I accept Mr Holland’s submission that it can be inferred from this conduct that Mr Singh’s offending was out of character and that he demonstrated remorse by trying to assist his victim.

21     Z (CA47/2012) v R, above n 20.

(c)Mr Singh pleaded guilty at his first appearance.

(d)Mr Singh completed the “No Excuses: Men’s Stopping Violence Programme” at Shine, which ran from 8 June 2018 to 16 October 2018. Mr Singh says he learned about the effect of violence on a partner and an offender and learned tips to avoid violence and how to exercised self-control.

(e)Mr Singh attended a restorative justice conference with the victim, two counsellors, a friend of the victim and her sister. Mr Singh said he apologised to the victim and admitted that it was his behaviour that had ruined the relationship. He says the victim expressed her feelings directly to him and told him how upset she was and explained how it had affected her. He says the victim forgave him and confirmed that she did not want as protection order.

(f)Mr Singh has undertaken voluntary community service with the Auckland Sikh Society. He started volunteering at the Auckland Sikh temple on 13 May 2018. The voluntary work has involved cleaning, washing dishes and serving food at the temple. He says this work has been very hard for him to complete because, customarily, Sikh males do not complete such tasks, especially not in public. He says, as a result, some male members of his community have ridiculed him and made a mockery or what he is trying to achieve. Despite this, he has completed a total of 50 hours voluntary work at the temple.

Consequences of conviction

[40]              Mr Singh relies on the current and future employment consequences stemming from his conviction. At the time of his conviction, he was working in the transport sector as a class 5 truck and trailer operator, where he transported shipping containers to and from the Ports of Auckland.

[41]              I have already referred to Mr Singh’s change of jobs since his conviction and the subsequent termination of that employment because of his conviction. I have also

noted that Mr Singh has been unable to obtain a job interview for any of the eight to 10 positions he has applied for. He says that, prior to receiving a criminal conviction, he did not have any difficulty obtaining job interviews. He believes his conviction has had a detrimental impact on his ability to obtain new employment, particularly given the jobs that he is applying for are low skilled and presumably have a number of applicants.

[42]              Mr Singh says, as a result of his unemployment, he is struggling to meet his basic living costs and has been suffering from acute stress and an inability to sleep. He has sought medical treatment for these issues.

[43]              Mr Singh was born in India and moved to New Zealand in 2010 but his family still lives in India. He is responsible for his mother and father. They are elderly and have no source of income and he provides them with financial support.

[44]              I do have some sympathy with the respondent’s submission that Mr Singh has created this problem for himself by leaving his existing employment. There is no suggestion that that employment could not have continued. However, even if Mr Singh had remained in his previous position and had that position been terminated for a reason other than through the fault of Mr Singh, then I accept he would be in the same position as he is in now.

[45]              I am satisfied that there is a real and appreciable risk that Mr Singh will be unable to obtain employment in the transport sector or as a call operator. Those areas of work (at least in terms of Mr Singh’s  roles) are relatively low skilled.  I accept  Mr Holland’s submission that low skilled jobs of this kind might well have a number of applicants and that Mr Singh’s conviction has put him at a disadvantage in not even being able to obtain interviews for the jobs for which he has applied.

[46]I agree with the comments of Mallon J in Nash v Police where she said:22

… In a variety of ways (eg. employment, insurance, immigration) people are asked to disclose whether they have criminal convictions. For those that are remorseful there can be a loss of pride and self-esteem or at least embarrassment in having to answer that question honestly. It may also

22     Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009 at [19].

materially disadvantage him – as his counsel says it may count against him when he is competing for a position against someone who does not have a conviction.

[47]              Mr Holland submits that the District Court Judge did not have an opportunity to consider Mr Singh’s employment consequences, but also that the Judge failed to give weight to the general consequences of a conviction, including stigma, embarrassment and barriers to travel and other opportunities. He submits that, when taking all these factors into account, the consequences are “above moderate”.

[48]              The Court of Appeal, in DC (CA47/2013) v R, has commented that a “criminal conviction is of itself a black mark on a record especially for somebody with no previous history”.23 And there may be real consequences for employment, whether current or prospective.

[49]              I accept that there is a real or appreciable risk here in terms of Mr Singh’s future employment.

Proportionality

[50]              The next, and crucial, issue is whether those consequences are out of all proportion to the gravity of the offence.

[51]              This was a situation of domestic violence. I echo the comments of Mallon J when she said, “Courts may be reluctant to grant convictions without discharge in situations of domestic violence”.24 On the other hand, there is Mr Singh’s immediate response of taking the victim to hospital (indicating his real and immediate remorse) and his other conduct which I have already acknowledged.

[52]              Overall, I am satisfied that the consequences of conviction in relation to     Mr Singh’s employment are out of all proportion to the gravity of the offence, particularly having regard to the mitigating factors I have discussed.

23     DC (CA47/2013) v R, above n 16, at [44].

24     Nash v Police, above n 22, at [20].

Result

[53]              The appeal is allowed. The conviction is quashed, and Mr Singh is discharged without conviction under s 106 of the Sentencing Act 2002.

Gordon J