Singh v Police - [2019] NZHC 417

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000379

[2019] NZHC 417

BETWEEN
BALJIT SINGH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 March 2019

Appearances:

SG Graham for Appellant

B Charmley for Respondent

Judgment:

12 March 2019

ORAL JUDGMENT OF TOOGOOD J

[Appeal against refusal to grant a discharge without conviction]

SINGH v NEW ZEALAND POLICE [2019] NZHC 417 [12 March 2019]

Introduction

[1] On 22 February 2017, Baljit Singh pleaded guilty to a solitary charge of common assault under s 196 of the Crimes Act 1961.1 He applied for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002.

[2] On 8 August 2017 Judge J Moses declined Mr Singh’s application for discharge2 and sentenced him to undertake 50 hours’ community work.

[3] Mr Singh is an Indian national, now aged 35. He holds a New Zealand resident's visa, but he is not a citizen. Since being convicted and sentenced, he has been served with a deportation liability notice. It appears this came as something of a surprise to Mr Singh. He now appeals his conviction; first, on the basis that he was not fully informed as to the potential repercussions a conviction would have on his immigration status before pleading guilty; second, Mr Singh also appeals Judge Moses’ refusal to discharge him without conviction.

The offending

[4] In the early hours of the morning on 16 December 2015, Mr Singh was at his home address in Manurewa. At the time, Mr Singh shared the address with a number of others, including the victim, as co-tenants.

[5] Earlier that night, Mr Singh and the victim had become involved in an argument over tenancy issues. At around 12:45 am, the victim went to bed. I infer that the argument with Mr Singh had become somewhat heated, because he entered her bedroom a short time later, unannounced, and pulled the blankets off her. In the process, he grabbed the victim by her clothing, breaking her bra strap.

[6] The victim left her bedroom; but Mr Singh followed her into the hallway and the pair began to argue again. Mr Singh slapped the victim in the face and she fell to the ground. She got back to her feet only for Mr Singh to slap her again. One of

1 The maximum penalty is one year’s imprisonment.
2 Police v Singh [2017] NZDC 17439.

Mr Singh’s other flatmates intervened and tried to restrain him. Despite this he was able to kick the victim in the stomach.

Applications for leave

[7]As a preliminary matter, Mr Singh sought leave to:

(a)appeal out of time;3 and

(b)adduce fresh evidence, namely an affidavit deposed by him dated 7 November 2018.4

[8] The applications arose due to Mr Singh only recently being made aware of his precarious immigration status. The Police did not oppose leave being granted; and given there is no prejudice to them I granted leave on both matters.

Further background

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 [2019] NZHC 417
Case: [2019] NZHC 417
Decision Date: 12 March 2019

CaseChat Overview and Summary

Baljit Singh appealed against his conviction for common assault and the District Court's refusal to grant him a discharge without conviction. The case originated from an incident in December 2015, where Singh, a non-citizen and non-national of New Zealand, assaulted a co-tenant. Singh pleaded guilty to the charge and was sentenced to 50 hours of community work. He subsequently became aware of the potential impact the conviction would have on his immigration status, leading him to appeal both the conviction and the refusal to grant a discharge without conviction. Singh argued that he was not fully informed about the potential repercussions on his immigration status before pleading guilty, and that the District Court failed to consider these consequences when deciding to deny the discharge without conviction.

The court considered whether a miscarriage of justice occurred due to Singh's lack of knowledge about the potential impact of his conviction on his immigration status. The court held that there was no miscarriage of justice as Singh must have been aware of the potential consequences on his immigration status. The court also found that the consequences of deportation, while serious, were not disproportionate to the seriousness of the offending. The court held that the gravity of the offence was moderately serious, and the consequences of deportation, while significant, did not outweigh the seriousness of the offending. Therefore, the appeals against the conviction and refusal to grant a discharge without conviction were dismissed.

The final orders of the court were to dismiss both appeals against the conviction entered in the District Court and the refusal to grant a discharge without conviction.

Orders