Singh v Police

[2018] NZHC 2513

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000224 [2018] NZHC 2513

BETWEEN

PAVNEET SINGH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	24 September 2018
Counsel:	G Aulakh for Appellant BA Keown for Respondent
Judgment:	26 September 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 26 September 2018 at 11 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

G Aulakh, Auckland. Crown Solicitor, Auckland.

SINGH v POLICE [2018] NZHC 2513 [26 September 2018]

Issues

[1]      Judge L Tremewan sentenced Mr Pavneet Singh to a term of 10 weeks’ imprisonment.1  Mr Singh had committed three assaults, all on the same evening.2  The Judge declined to discharge Mr Singh without conviction.3   Mr Singh has now been released from prison.  But, he contends he ought to have been discharged without conviction.

[2]      Mr Singh’s counsel, Mr Aulakh, does not have the material he anticipated from Mr Singh for the appeal.  Mr Singh has “not been reachable”.  However, Mr Aulakh contends the Judge failed to identify, or give adequate weight to, mitigating features and erred in her assessment of the consequences of conviction.

Facts

[3]      For  several  days,  Mr  Singh  had  been  loitering  outside  a  pharmacy  in Helensville. On 2 June 2017, the first victim left work. Mr Singh ran at her, and when she ran away, gave chase.  Mr Singh placed his hand over her mouth to prevent the victim from screaming.  A member of the public came to her aid when Mr Singh’s hand “slipped”.

[4]      Mr Singh then ran to a supermarket. He waved at the second victim, to get her attention.  She opened a door, to see what he wanted.  Mr Singh lunged at her and grabbed her arms. He attempted to pull her outside. She protested, and broke his grip. Mr Singh then ran to a takeaway store.

[5]      He there accosted a third female, removed a handful of sweets and then “started trying to punch” the last victim, who was attempting to stop Mr Singh from leaving the shop.  Mr Singh repeatedly told this victim he would kill him.

[6]      Mr Singh’s mental health was examined by a court-appointed psychiatrist. Dr Russell Wyness concluded Mr Singh was disinhibited and disorganised in his

1      Police v Singh [2018] NZDC 11741.

2      All were laid under s 196 of the Crimes Act 1961.

3      Sentencing Act 2002, ss 106 and 107.

thinking because of a drug-induced psychosis, compounded by anxiety in relation to Mr Singh’s immigration status.  Mr Singh is from India.  He had been served with a deportation notice, albeit that had been stayed (on an interim basis) by this Court. Dr Wyness considered this mix did not afford a defence of insanity, because:

With regard to subsection 2 of Section 23, it is my opinion Mr Singh knew the nature of the act which he was committing, i.e. approaching young women with the aim of asking them to enter a relationship with him.

I believe that he knew that the way he was approaching these women was wrong in that he was expecting them to try and escape from him and therefore either held on to them and/or put his hand over their mouth so that they could not shout for help.

Mr Singh’s condition of substance induced psychosis is not usually considered by the court as a disease of the mind under Section 23 of the Act.

Analysis

[7]      Mr  Aulakh  contends  the  Judge  overlooked  or  failed  to  have  regard  to

Mr Singh’s mental health, guilty pleas and the fact he was a first offender when considering the seriousness of the offending.

[8]      The Judge referred extensively to the psychiatric report at sentencing.  The Judge reduced the term of imprisonment because of Mr Singh’s time in hospital, guilty pleas, and prior good character:4

In my assessment a starting point sentence of imprisonment is in fact warranted for this offending. I have given very careful consideration to what an indicated sentence might be, balancing all matters including your own interests,  and  noting again you  are  a  first  offender and  doubtless these proceedings have been salutary.   In other words a wakeup call for you. Ultimately it is my view that a four month sentence of imprisonment is appropriate.  From that I am prepared to give a further credit for the fact that you had some time in a mental health facility and you have no previous conviction history, so you have come to the Court as a first offender.  I am prepared to give a credit of around 15 percent for that.

From the revised starting point I will then give a further credit, which is the maximum credit I can give in law, of 25 percent for your guilty pleas and taking responsibility. And rounding the outcome that leaves me with an end sentence of 10 [weeks’] imprisonment.

4      Police v Singh, above n 1, at [26]–[27].

[9]      The Judge did not specifically address these matters again when assessing the application for a discharge without conviction, but it is obvious the Judge considered the offending too serious to warrant that outcome. Her Honour described the offending

as “relatively serious”.5

[10]     The offending was out of character, animated by a psychosis, and committed by a 25-year-old who ultimately pleaded guilty.  So, a case could be advanced for a discharge without conviction, especially as none of the victims suffered actual physical harm.  However, two significant problems confront such an approach.

[11]     First, the Sentencing Act 2002 specifically precludes voluntary consumption or use of any drug from ameliorating the seriousness of an offence.6    Dr Wyness considered “Mr Singh suffered a cannabis and methamphetamine induced psychotic episode”, but was now well in the absence of these substances.   Mr Singh had no history of mental illness.  Consequently, mitigation otherwise applicable to ill mental health (with a nexus to the offending) was specifically constrained by statute.  And, Dr Wyness considered Mr Singh appreciated the nature of this actions, and knew they were wrong. This explains why Mr Singh’s then counsel—not Mr Aulakh—accepted Mr Singh’s illness had little purchase as a mitigating feature.

[12]     Second, the offending involved multiple victims.  Force was applied to each. The last Mr Singh tried to punch, and repeatedly threatened to kill.  All were left shaken.  Unsurprisingly, the first and second victims still feel unsafe being at work or leaving it.

[13]     It follows the Judge did not err in her assessment of offence seriousness.  As her Honour said, the offending was “relatively serious”.

[14]     Now, consequences of conviction.  Mr Singh is completing a bakery course at Manukau Institute of Technology.  Mr Aulakh contends the fact of conviction may jeopardise this course, future employment prospects and travel to other parts of the world.  Mr Singh has family in Saudi Arabia and Belgium.

5      Police v Singh, above n 1, at [24].

6      Sentencing Act 2002, s 9(3).

[15]     These propositions are not supported by evidence, because Mr Aulakh has lost contact with his client, and because Mr Singh’s affidavit in the District Court was framed at a level of generality.   Mr Singh raised these consequences, but did not append evidence to support them.7   In any event, courts are reluctant to second-guess decision makers in this context, whether they be domestic course providers or foreign governments.  No error arises here either.

[16]     Mr Aulakh also submitted the Judge wrongly referred to Mr Singh being in New Zealand unlawfully. However, Mr Singh’s counsel accepted that was so, and the Judge noted this issue was for other decision makers.

Outcome

[17]     The appeal is dismissed.

……………………………..

Downs J

7      Other than a letter from Manukau Institute of Technology, which merely recorded a place on the course.