Singh v Police

[2017] NZHC 3064

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-391 [2017] NZHC 3064

BETWEEN

GURPREET SINGH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	11 December 2017
Counsel:	S Bhardwaj for Appellant F E Gourlay for Respondent
Judgment:	11 December 2017

JUDGMENT OF BREWER J

Solicitors:

Bridge Law (Hamilton) for Appellant

Kayes Fletcher Walker (Auckland) for Respondent

SINGH v POLICE [2017] NZHC 3064 [11 December 2017]

Introduction

[1]      Mr Singh appeals against his sentence of two years’ imprisonment handed down  against  him  in  the  District  Court  at  Manukau  on  9  October  2017  by Judge AJ Johns.1     The submission on behalf of Mr Singh is that the sentence is manifestly excessive and should have been commuted to one of home detention.

Background

[2]      Mr Singh was 36 years old and had been in New Zealand for about two years. He  was  in  an  arranged  marriage  with  the  complainant  and  followed  her  to New Zealand where she was studying.  When he got here he obtained employment at a basic level to assist with family finances.

[3]      Mr  Bhardwaj  advises  me  that  Mr  Singh  came  from  a  simple  farming background, had very limited English and little exposure to the values and norms of New Zealand society.

[4]      Mr Singh pleaded guilty to one charge of injuring with intent to injure his wife and one charge of assaulting her with a weapon, namely a knife. Each of those charges carries a maximum of five years’ imprisonment.

[5]      Prior to entering his pleas of guilty, Mr Singh and the prosecution agreed upon a summary of facts. One of the issues confronting Judge Johns at sentencing was that

Mr Singh later completed an affidavit which, in material respects, sought to diminish his responsibility for the charges to which he had pleaded guilty.  I will come to that matter again shortly.

[6]      At this stage, I will set out the factual basis for the offending as contained in the summary of facts.

[7]      On 19 June 2017, there was an argument between Mr Singh and his wife. They argued over relationship matters but particularly her not wanting to have sex with him.

Mr Singh and his wife shared Mr Singh’s parents’ home and Mr Singh and his family

1      Police v Singh [2017] NZDC 22915.

did not allow the complainant to refuse sex. I understand that this is a matter of cultural significance.

[8]      The complainant wanted to talk to Mr Singh about this but he became angry and climbed on top of her and began to strangle her. He put his hands around her neck and squeezed.  The complainant told the Police that he started killing her. According to the summary of facts, this lasted for about two minutes and restricted her breathing so she was unable to breathe or call out for help.

[9]      The complainant struggled and the noise attracted the attention of Mr Singh’s parents who came into the bedroom and found Mr Singh naked on top of his wife who was also naked.   The parents managed to make Mr Singh release his wife.   The complainant was then taken into the family room where Mr Singh’s family members were anxious to prevent her from contacting the Police.  For the next several hours they followed her around the house to make sure she did not leave or call the Police.

[10]     As to the charge of assault with a weapon, at about 7:00 am the next morning the complainant said she was going to contact the Police. This made Mr Singh angry and he grabbed a kitchen knife and lunged at her with it.  The complainant put her hands up in defence and suffered a laceration to her hand between her fingers and a small laceration on her chin. During this process, Mr Singh cut himself with the knife and the complainant managed to leave the address saying she was going to call for an ambulance.  Instead, the wife alerted neighbours who called the Police for assistance.

[11]     As a result of the assaults, the complainant received significant bruising and scratches to her neck and throat.  The Judge had photographs of the bruising to the neck and found it to be significant. The complainant had a small laceration to her left hand and one to her chin.

District Court

[12]     Judge Johns adopted a starting point of two  years’ imprisonment for the injuring with intent to injure and added a one year uplift for the assault with the knife, making a total starting point of three years’ imprisonment.

[13]     The Judge took into account that Mr Singh had no record of previous offending and he entered early guilty pleas.  However, the Judge rejected a submission that a further significant discount should be given for remorse.

[14]     First, the Judge had regard to the pre-sentence report which indicated that there was no real remorse and the Judge also had regard to the further affidavit to which I have referred previously.   The Judge felt that was significantly self-justifying and victim-blaming.

[15]     Adjustments to the starting point were a credit of 25 per cent for the early guilty pleas, five per cent for Mr Singh’s good character, and just over three per cent for any tincture of remorse that might be genuine.  In total, the Judge discounted the starting point of three years’ imprisonment by one-third, and that resulted in an end sentence of two years’ imprisonment.

[16]     So far as home detention is concerned, the Judge said this:

[21]      I consider that this offending was serious, that given the comments in the pre-sentence report and your denial of many of the aggravating features of the offending, that rehabilitation for you in terms of domestic violence does not look hopeful and I am not satisfied therefore, given the serious nature of the offence, your minimising of your involvement, that a community-based sentence is warranted.

Appeal

[17]    On appeal, my job is to see whether the Judge made an error of such significance that a different sentence should be imposed.  I am mindful that when it comes to commuting an otherwise appropriate sentence of imprisonment to one of home detention, the sentencing Judge is exercising a discretion.   Therefore, in examining that aspect of the sentence, I am primarily looking to see whether there was an error in the way in which the discretion was exercised.

[18]     Mr  Bhardwaj  has  made  careful  submissions  on  behalf  of  his  client.    In summary, Mr Bhardwaj submits that the starting points were too high.

[19]     I disagree.  In my view, the starting point of two years’ imprisonment for the charge of injuring with intent to injure was well justified.  This was serious domestic

violence involving a relatively prolonged and serious strangulation.    The circumstances of it, with both parties being naked and he straddling her, are aggravating. The danger inherent in manual strangulation is well known.

[20]     Further, the Judge had to impose an uplift for the assault with the knife.  That was separate offending which occurred hours after the first offending and was in response to the complainant’s stated intention of contacting the Police about the earlier offending.  On a standalone basis, the assault with a knife might have resulted in a sentence approaching two years’ imprisonment.

[21]     Accordingly,  I find  no  error  in  the  overall  starting  point  of  three  years’

imprisonment.

[22]     Mr Bhardwaj accepts that the Judge gave a limited discount for remorse and really the thrust of his submissions now is whether there should have been a commutation  of  the  end  sentence  of  two  years’ imprisonment  to  one  of  home detention. I pause at this point to note that the discounts given by the Judge, amounting in total to one-third of the starting point, were appropriate and on a totality basis the end sentence of two years’ imprisonment cannot be impeached.

[23]     So far as home detention is concerned, Mr Bhardwaj says this:2

It is respectfully submitted that while weighing up the contents of the probation report and genuineness of the remorse, the Court failed to take into account the personal circumstances of the Appellant, namely he comes from a farming background of a remote village of India, and that the infidelity by the wife is considered serious by such villagers, and that the Appellant did not have much exposure to the norms of the New Zealand society. The Appellant is not highly educated and had not been able to express himself fully and/or properly without the aid of an interpreter. The Appellant’s sister deposed an

affidavit and clearly said that the Appellant was very remorseful of his actions. It is also needed to be seen against a background of his having no criminal history.

[24]     I interpolate that the reference to “infidelity” by the wife is a reference to part of the subsequently produced affidavit in which Mr Singh departed from the summary

2      Submissions on appeal, dated 20 November 2017.

of facts which had the genesis of the assault as being the complainant’s wish to talk about why she did not want to have sex with him.

[25]     Mr Bhardwaj goes on to say that because of this background the Judge should have considered that there were realistic prospects of rehabilitation if he was not isolated in prison.  Mr Singh had been in custody prior to his sentencing and had had no opportunity to engage in rehabilitative courses.  Mr Bhardwaj submitted that if

Mr Singh were on home detention, conditions could be imposed that he attend an anger management programme and/or relationship counselling.

[26]     Judge Johns found that a sentence of imprisonment of two years was the appropriate sentence.  The issue then was whether it should be commuted to one of home detention.

[27]     A Judge does not generally exercise a discretion to commute an otherwise appropriate sentence to one of home detention unless there are factors personal to the prisoner which make that appropriate and desirable.  In other words, appropriate and desirable to emphasise rehabilitation and reintegration.

[28]     There were no such factors in this case.  Indeed, the indications to the Judge were entirely to the contrary.   Mr Bhardwaj has told me in his submissions this morning that he explained to Mr Singh the potential downside of filing an affidavit for the sentencing Judge which materially backtracked on the responsibility he had taken for the offending in agreeing to the summary of facts.  Nevertheless, Mr Singh filed his affidavit and it corroborated comments in the pre-sentence report. What the Judge had was an offender who was self-justifying and victim-blaming.

[29]     Further, there was no indication at all that the home detention environment, the very address in which he offended, would do anything to assist him to deal with the entrenched cultural feelings of entitlement that led to the offending in the first place.

[30]     I find that Judge Johns decided correctly not to exercise her discretion to commute the sentence to one of home detention.

Decision

[31]     The appeal is dismissed.

Brewer J