Singh v Police
[2017] NZHC 2963
•27 November 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
CRI-2017-404-000261 [2017] NZHC 2963
BETWEEN MANPREET SINGH
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 27 November 2017 Appearances:
A Beach for the Appellant
D S Houghton for the RespondentJudgment:
27 November 2017
Reasons:
30 November 2017
REASONS JUDGMENT OF HINTON J
Counsel/Solicitors:
Tony Beach, Barrister, Auckland
Meredith Connell, Auckland
MANPREET SINGH v NZ POLICE [2017] NZHC 2963 [27 November 2017]
Introduction
[1] The appellant, Mr Manpreet Singh, pleaded guilty to giving false details as to his identity1 and dishonestly using a document for a pecuniary advantage.2 The District Court declined his application for a discharge without conviction. He was sentenced to 80 hours’ community work and required to pay reparation of $500.
[2] The notes of the District Court decision are unavailable. Pursuant to a Minute by Lang J on 16 August 2017, the High Court is now to determine the application for discharge without conviction afresh.
[3] On 27 November 2017, I dismissed the appeal against refusal of Mr Singh’s application for discharge. These are my reasons.
Background
The offending
[4] The appellant, Mr Manpreet Singh, and the victim of his offending,
Mr Bikramjit Singh, share the same last name. Because of the potential confusion between the two, I shall refer throughout to Mr Manpreet Singh as the appellant and
Mr Bikramjit Singh by his first name.
[5] The appellant and Bikramjit knew each other because Bikramjit and his wife stayed in the appellant’s flat from July 2016 to October 2016, paying him rent.
[6] At 9.00 pm on 18 November 2016, the appellant was driving along
Wellesley Street in Auckland.
[7] A police officer observed the appellant failing to comply with a red traffic signal. The officer stopped the appellant. When spoken to by the officer, the appellant gave Bikramjit’s name and a false date of birth. The appellant provided the officer
with Bikramjit’s Indian driver’s licence and said that the person pictured on the licence
1 Land Transport Act 1998, s 44; maximum penalty a fine of $10,000.
2 Crimes Act 1961, s 228(1)(b); maximum penalty seven years’ imprisonment.
was him. There is no dispute that Bikramjit had not given the appellant permission to use his licence.
[8] The appellant’s evidence is that he panicked when the police pulled him over. He feared loss of his licence due to his accumulation of demerit points and made a “terrible error of judgment” in giving Police his flatmate’s licence and details.
[9] The appellant had two people with him in his car. When asked by the officer if he was an Uber driver, the appellant said “no”, but the officer then saw the people leave the car and give him $10. In evidence, the appellant said they were friends of his parents. The appellant was in fact a taxi driver at that time.
[10] The appellant’s offending came to light when Bikramjit received a letter advising him of a fine. On 11 December 2016, Bikramjit telephoned the appellant who was in India for a wedding. The appellant told Bikramjit he did not know about the ticket and it was not him. He said it might be a friend of Bikramjit’s or perhaps it was a mistake. He would talk to his friend in the Police and come back to Bikramjit. The appellant said in evidence that he intended to sort it out once back in New Zealand because that would be much easier and it would be better to talk to Bikramjit in person. He was due to land in New Zealand on 21 December 2016 and the due date for the fine was 24 December 2016.
[11] Bikramjit went to the Police on 19 December 2016. The appellant did not know that. He tried unsuccessfully to meet with Bikramjit on his return and then a reminder letter arrived and he thought “Okay Bikramjit has not paid the ticket” and so he paid the fine on 4 January 2017. He was concerned that the fine was $400 more than it needed to be because Bikramjit’s Indian licence had expired.
[12] On 31 January 2017, the officer who had spoken with the appellant on
18 November 2016 received an email from the NZ Police Infringement Bureau, advising that Bikramjit was alleging that false information had been supplied. The officer contacted the appellant by mobile phone and the appellant confirmed that he was the one that the officer had stopped and spoken to on 18 November 2016. Attempts by the Police to meet with the appellant to obtain more details were
unsuccessful, and on 2 February 2017, the Police located and arrested the appellant. At the time of the arrest, the appellant was at home, but told the Police he was not. At the Auckland Central Police Station, the appellant stated “Yes I am responsible that I made this mistake”.
[13] The offending has had a significant effect on Bikramjit. It has caused him significant stress because he, (together with his wife) was in New Zealand on a working visa at the time. His English is not good and he had to take time off work to deal with the matter.
Evidence on appeal
[14] How the appellant came to have Bikramjit’s licence to give to the police officer was unclear and was the subject of cross-examination of both the appellant and Bikramjit before me, as this is material to the application for discharge. Some of the oral evidence is also referred to in the previous background.
[15] Bikramjit, in a brief victim impact statement of 31 March 2017, said that the appellant had received the licence as security for Bikramjit and his wife staying with him. In a fuller sworn statement that same day (which I accept was purely by way of greater detail) and in Court, Bikramjit said the appellant asked him for his licence and he gave it to him twice. The first time was after moving into the flat, for security, and it was returned that day, and the second time because the appellant said he was going to Hastings for five to six months and needed the licence to change the rental property over to Bikramjit. Bikramjit says the appellant left Auckland on 22 September 2016. The appellant returned about the end of October 2016 and gave the licence back to Bikramjit, after a number of requests, saying he had not needed to make the change- over of the property. Bikramjit states he had his licence in his possession at the time of the offending, suggesting that the appellant had duplicated the licence. Bikramjit also says that he has been shown a photograph of the licence the appellant gave to the police, and that it does not appear to be his original licence.
[16] The appellant says he never asked for Bikramjit’s licence or received it from him, and that Bikramjit had just left his licence in the appellant’s car. The appellant
said in evidence that if he had thought the licence was a copy of Bikramjit’s real licence, he would not have taken the risk of using it, because using a duplicate licence itself is an offence.3
[17] I am quite satisfied that Bikramjit’s version of events is correct. I did not find the appellant’s evidence to be credible. I find that the appellant had obtained Bikramjit’s licence on the two occasions and copied it, though it does not matter for present purposes whether the licence he used was the original or a copy. First, the appellant had emailed Bikramjit on 3 November 2016 saying he had sent a picture of Bikramjit’s licence to a cleaning company and Bikramjit would receive a $200 bill from the company. The appellant says the licence was already in his car then, but that he made up the 3 November 2016 story to teach Bikramjit not to leave a house unclean next time he moves out of one. The email is consistent with the appellant having at least a copy of Bikramjit’s licence, being prepared to use it as he sees fit, and being prepared to fabricate a story. Second, it would be most unlikely that Bikramjit would leave his licence in the appellant’s car. Bikramjit’s evidence is that he did not drive at all as he could not drive a car. His Indian licence was for a car and motorbike and not used by him for purposes of driving in New Zealand. Furthermore, Bikramjit had moved out of the appellant’s flat well before 18 November 2016. Third, the appellant clearly had a motive to keep the licence in the car. He was a taxi driver with high demerit points. He said his demerit points were the reason he used it. Finally, the appellant did not answer questions in a straightforward way, preferring to point out why he considered Bikramjit was plainly wrong, and he had lied regarding other matters (a number of them conceded), whereas I consider Bikramjit had not.
Mr Singh’s personal circumstances
[18] Mr Singh is 29 years old and has no previous convictions. He was born in
India and came to New Zealand as a student at age 19, funded by his parents.
[19] Mr Singh enrolled at MIT to study Landscape and Horticulture, and completed a level IV advanced certificate in Horticulture. He worked as a Gardener Team Leader
for Auckland Council for four-and-a-half years after he graduated. He obtained a taxi driver’s licence in 2015, and drove a taxi intermittently from mid-2015 to the end of
2016. During that period, he also worked for a friend in his glasshouse from time to time.
[20] In 2017, Mr Singh began studying for his National Certificate in Real Estate after discussions with someone he met, Mr Champak Mehta. Mr Mehta is the owner of a real estate business and is apparently currently providing mentorship to Mr Singh.
[21] The appellant now expresses remorse for his actions, and has written a letter of apology to the Court. He has also provided character references in which prominent members of the community state that Mr Singh is of good character, although I note it does not seem they were aware of the nature of the charges. A further reference from a Mr Sharma, who plays cricket with the appellant states that Mr Sharma is aware of the appellant’s offending, and the charges are “totally out of his character”. He has paid the reparation of $500 to the victim and completed many hours of voluntary community work with his church, in excess of the hours ordered.
Relevant law
[22] Section 106 of the Sentencing Act 2002 provides that a court may discharge an offender without conviction.
[23] Section 107 provides guidance as to when a discharge can be granted. It provides that:
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.
[24] These requirements are mandatory. Section 107 requires consideration of three factors:4
(a) the gravity of the offence, having regard to both aggravating and mitigating factors, and the factors that apply to the offender;
(b)the direct and indirect consequences of a conviction, in respect of which the Court must be satisfied that there is a real and appreciable risk of such consequences;5 and
(c) whether those consequences are out of all proportion to the gravity of the offence.
[25] Randerson J said in Iosfea v Police that the nature and seriousness of the consequences and the degree of likelihood of their occurring will be material to the Court’s assessment of whether those consequences would be out of all proportion to the gravity of the offence.6
[26] If the s 107 test is met, the Court then has a discretion to discharge under s 106.
[27] Section 107 requires judicial assessment of the threshold criteria, as opposed to the exercise of a discretion. Therefore, an appeal against the proportionality test under s 107 is by way of rehearing with the appellate Court making its own assessment of whether the criteria are established.7
[28] In these circumstances, where the District Court decision is not available, the application for a discharge without conviction is considered afresh.
Analysis
Gravity of the offence
[29] Mr Beach, for Mr Singh, submits that the gravity of the offending is moderately low. In his submission, Mr Singh’s offending did not merit the serious charge of using
a document, and there was an element of over-charging by the police. He refers to
5 Davis v Police [2016] NZHC 1216 at [17].
6 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [35]. See Maraj v Police
[2016] NZCA 279 at [10].
7 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11] and [66]. See Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 for the approach to general appeals.
Shakib v Police,8 where the appellant had been stopped by police and gave his brother’s details. He pleaded guilty to giving false information as to his identity, and Gilbert J granted a discharge without conviction on appeal. Mr Beach submits that the present case is similar. Mr Beach also points to Mr Singh’s remorse and good character, noting that he has completed many hours of voluntary community work.
[30] Ms Houghton, for the Police, submits that the gravity of the offending is moderate. She says the police decision to charge Mr Singh with the serious offence of dishonestly using a document was deliberate and considered. She says the appellant secured possession of Bikramjit’s licence and deliberately misused it. When Bikramjit first contacted him to query the fine, the appellant denied knowing anything about it. Ms Houghton says that after Bikramjit complained to Police, Mr Singh contacted him several times asking him to change his statement. She says Mr Singh also contacted Bikramjit in March 2017 asking him to write a letter withdrawing his complaint.
Ms Houghton submits that these factors distinguish the present case from Shakib, as
Mr Singh took advantage of a vulnerable victim and was committed “to a course of dishonesty”.
[31] The evidence is not clear as to whether the appellant asked Bikramjit to withdraw the complaint and so I do not proceed on that basis. Otherwise, as I have already said, I do not consider Mr Singh’s version of events is plausible. This is not a case of someone panicking when pulled over by the police, and displaying a lapse in judgment. In my view, the presentation of Bikramjit’s licence was a deliberate, considered action. I can only conclude that the licence was in the appellant’s car for exactly this sort of situation. The appellant continued the lie for some time after the offending and was clearly at least hoping Bikramjit would cover for him with the Police.
[32] The present case is therefore materially more serious than Shakib. Mr Shakib’s offending did fall into the category relied on by Mr Beach of a lapse of judgment. Mr Shakib provided false details as to his identity but did not present a driver’s licence
that was not his own. (It was this distinction that merited the charge of dishonestly
8 Shakib v Police [2014] NZHC 2596.
using a document in this case.) The appellant’s offending is aggravated by the fact
that he denied the offending when confronted by Bikramjit and did not quickly front up to the offending, which he acknowledges.
[33] I also do not consider the appellant is remorseful as Mr Shakib was. He deeply regrets the position he has got himself into, but he has no insight into his offending and no sense of the wrong he has done to Bikramjit.
[34] I agree with Ms Houghton that the gravity of the offending is moderate.
Consequences of a conviction
[35] Mr Singh has been studying to become a real estate agent, and says he has the prospect of employment with Mr Champak Mehta.
[36] Section 37(1) of the Real Estate Agents Act 2008 provides that a person who has been convicted of a crime involving dishonesty is not entitled to hold a real estate agent’s licence for a period of 10 years after conviction.
[37] Mr Beach submits that there is no question of concealing a conviction from a regulatory body, as Mr Singh would be obliged to disclose even his discharge without conviction in applying for a real estate agent’s licence.9 Therefore, a discharge without conviction would not mean Mr Singh’s offending is concealed from the Real Estates Agents regulatory body. It could make its own assessment of whether he is fit to be a real estate agent, rather than his being automatically precluded from obtaining a
licence, by a conviction.
[38] The other submitted consequences of a conviction include profound stigma, a real and appreciable risk to travel prospects, and effect on employment in areas other
than real estate.
9 This is clear from Real Estate Agents Authority v Domb [2017] NZCA 199, [2017] NZAR 871
at [30].
Are the consequences out of all proportion to the gravity of the offending?
[39] The consequences of stigma, potential travel limitations and general effect on employment are ordinary consequences that flow from convictions.
[40] Further, as Ms Houghton submits, Parliament has expressly chosen to ban those with relatively current dishonesty convictions from practising as real estate agents, which reflects the trust and confidence that the public must place in real estate agents who handle their property and their money. It is arguable that if the automatic nature of the prohibition under s 37 were readily used to justify a discharge without conviction, the legislative policy of s 37 would be undermined.10 However, the Court retains a discretion to discharge without conviction.11
[41] Ms Houghton refers to three cases involving a real estate agent or trainee, applying for a discharge without conviction. In R v Singh,12 a different Mr Singh again was convicted of two charges of causing other persons to use or act upon forged documents as if they were genuine. He was running for election as a local board member, and completed voting forms on behalf of electors who did not reside in the relevant area, using altered details and forged signatures. Counsel sought a discharge without conviction. Mr Singh lost his real estate agent’s licence as a consequence of the conviction, and this had a direct impact on his ability to derive income and to retain his home. Although Mr Singh expressed remorse and the offending resulted from genuine misunderstanding, Woolford J nevertheless considered the gravity of the offending moderately high, with far-reaching consequences. He refused to grant a discharge without conviction.
[42] Ms Houghton also refers to Kumar v Police.13 In the course of his work as a courier driver, Mr Kumar had dishonestly retained two sets of motorcycle boots that a retail store had ordered, after initially forgetting they were still in his van. He pleaded guilty to theft, and the boots were recovered intact. Although he was not working as
a real estate agent at the time of his offending, he had begun study towards that goal.
10 Kumar v Police [2012] NZHC 946 at [13].
11 At [14].
12 R v Singh [2014] NZHC 209.
13 Kumar v Police [2012] NZHC 946.
Venning J concluded that the direct consequences of conviction, namely a 10-year prohibition on obtaining a real estate agent’s licence, were out of all proportion to the gravity of the offending and granted a discharge on appeal.
[43] Finally, Ms Houghton refers to Whitehead v Commerce Commission.14
Mr Whitehead was convicted of making false representations in relation to the sale of land,15 which was accepted to be relatively minor offending. The vendor did not suffer loss and Mr Whitehead acted carelessly rather than dishonestly. Counsel sought a discharge without conviction. Mr Whitehead had been a real estate agent for eight years, running a successful real estate business with his wife. That business would be in jeopardy if he was convicted, given the effect of s 37 of the Real Estate Agents Act, and he would lose his significant income. While recording that the purpose and policy of the REAA is unequivocal, Harrison J nevertheless granted a discharge without conviction in light of Mr Whitehead’s relatively low culpability and the severity of the consequences of a conviction.16
[44] In Singh, Woodhouse J declined the discharge application, but the offending was more serious than in the present case. It had far-reaching consequences. I note that Woodhouse J did not accept that the defendant would be unable to retrain in another profession at age 43.17
[45] The offending here is more serious than that in both Kumar and Whitehead, as it involved deliberately deceiving the Police.
[46] As for the consequences of conviction, the appellant’s intention to become a real estate agent appears to be recently formed, he having commenced training in June
2017, well after the charge was laid. His circumstances therefore differ in that regard also, from those of Mr Whitehead, who ran his own successful real estate business. However, there is no reason not to regard the appellant’s career plan as genuine, and in this regard, he is in a similar position to the appellant in Kumar, who was part-way
through his study. I note though that no mention was made in Kumar of any other
14 Whitehead v Commerce Commission HC Napier CRI-2010-441-2, 9 March 2010.
15 An offence under the Fair Trading Act 1986, ss 14 and 40.
16. Whitehead v Commerce Commission HC Napier CRI-2010-441-2, 9 March 2010.17 R v Singh [2014] NZHC 209 at [51].
employment prospects for Mr Kumar. In this matter, the appellant has qualifications and experience in landscaping and horticulture, and so he is not without other employment options if he is unable to work as a real estate agent or a taxi driver. I also consider this is not a case where I should seek to circumvent s 37(1) of the Real Estate Agents Act 2008.
[47] As Harrison J observed in Whitehead,18 decisions as to discharge without conviction turn on their particular facts and only limited guidance can be obtained from comparable cases.
[48] In my view, Mr Singh’s deceptive course of conduct, which included attempts to conceal his wrongdoing from Bikramjit, tips the balance in this case. The offending is moderate in scale. The consequences for the appellant do not leave him out of a career altogether. The consequences of conviction are not out of all proportion to the gravity of the offending.
Result
[49] I therefore agreed with the conclusion reached by the District Court Judge and dismissed the appeal against the refusal to grant a discharge without conviction.
[50] The appeal seems to be confined to the District Court Judge’s decision on discharge without conviction; there is no challenge to the sentence Mr Singh received. In those circumstances the sentence of 80 hours’ community work and $500 reparation should stand.
--------------------------------------------------- Hinton J
18 Whitehead v Commerce Commission HC Napier CRI-2010-441-2, 9 March 2010 at [20].
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