Singh v Police - [2016] NZHC 2952

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000269 [2016] NZHC 2952

BETWEEN
MANISH KUMAR SINGH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 5 December 2016

Counsel:

P H H Tomlinson for Appellant
A L McConachy for Respondent

Judgment:

7 December 2016

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 7 December 2016 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
P H H Tomlinson, Auckland.
Meredith Connell, Auckland.

SINGH v POLICE [2016] NZHC 2952 [7 December 2016]

The issue

[1] On 16 June 2016, Judge Jelas declined to discharge the appellant without conviction.1 The appellant contends the Judge was wrong not to have discharged him for various reasons.

Background

[2] The offending was spread across two incidents.

[3] The appellant had three male flatmates: A, B and C. On 7 November 2015, the appellant argued with A about the use of an off-street park. The appellant grabbed a pair of scissors. He threatened to kill A. A ran and hid in a locked room. The appellant then entered B’s bedroom. He grabbed B by the neck while still holding the scissors in his other hand. The appellant’s partner pulled the appellant away. C asked the appellant to stop. The appellant followed C to the kitchen, grabbed him by the collar and pushed C against the bench. The appellant placed his hand over C’s face. He raised the scissors in a threatening manner. Again, the appellant’s partner pulled him away. Police attended. The appellant denied the offending. He said everyone at the address was “making up stories”. The appellant was arrested and granted bail.

[4] At approximately 5 am on 14 February 2016, the appellant unlawfully entered his neighbour’s home. A party was in progress there. The appellant stood outside the closed door to the bathroom. The female victim, D, opened the door to find the appellant in the hallway. The agreed summary of facts records the pair were a metre apart, and the appellant stood motionless with his eyes fixed on D. She shouted at him to leave. The appellant ignored her, and smiled. D pushed the appellant to the front door. At this point, her friends came to her aid. Police were called. The appellant said the allegation was “false”. The incident occurred while the appellant was on bail for the first. He had twice previously asked D to come over to her property. She did not want his attention. The appellant knew that. His
bedroom overlooked her property.

1 Police v Singh [2016] NZDC 11132.

[5] On 11 April 2016, the appellant pleaded guilty to six charges: possession of an offensive weapon; three charges of assault; threatening to kill; and unlawfully being in a building. All but the last related to the first episode. The appellant had earlier been warned by the Police about behaviour towards his flatmates but no charge had been laid.

[6] The appellant is 34 years old. These offences are his…

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 [2016] NZHC 2952
Case: [2016] NZHC 2952
Decision Date: 7 December 2016

CaseChat Overview and Summary

The case of Singh v Police involves an appeal by Manish Kumar Singh against the decision of Judge Jelas, who declined to discharge him without conviction. Singh pleaded guilty to charges including possession of an offensive weapon, assault, threatening to kill, and unlawful entry. The central issue before the court was whether the consequences of conviction would be out of all proportion to the seriousness of Singh's offending, warranting a discharge without conviction under s 106 of the Sentencing Act 2002. Singh argued that the consequences, particularly the risk of job loss and deportation, were disproportionately severe compared to the gravity of his offending. The court found that the offending, though involving multiple incidents and a pattern of persistence, was moderately serious. While Singh’s personal circumstances, including his employment and family support, were mitigating factors, the court held that the consequences of conviction, including likely job loss and potential deportation, were not out of proportion to the seriousness of the offending. The court dismissed the appeal, finding that the Judge's assessment of the consequences and the overall seriousness of the offending was appropriate.

Orders