Singh v Police
[2016] NZHC 2952
•7 December 2016
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 RespondentJudgment:
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 first. The appellant came to New Zealand in 2011. He gained a Masters in Business Administration. The appellant is an office manager. Until now, his employer has supported him as a conscientious and responsible employee. The appellant appears to be well liked by other staff and to have been regarded as a capable student. The appellant’s parents remain in India. The appellant bought them a house. I am told he pays the mortgage. To summarise, but for the offending, the appellant was a law-abiding and responsible member of the community.
The decision below
[7] The appellant sought to be discharged without conviction pursuant to s 106 of the Sentencing Act 2002 on the basis the consequences of conviction would be out of all proportion to the seriousness of the offending. The appellant invited particular attention to the twin risks of job-loss and deportation.
[8] The challenged decision is comprehensive. It extends to 50 paragraphs. Judge Jelas concluded the appellant’s offending was “moderately serious”. The Judge then had regard to the consequences of conviction. Her Honour was not satisfied those consequences would be disproportionately severe in terms of the statutory framework provided by s 107. The application was dismissed.
A précis of the appellant’s case
[9] The appellant submitted:
(a) While the 7 November offending was moderately serious, the Judge wrongly treated the second episode as an extension of the first, failed to appropriately consider allegedly prompt pleas, and gave undue
weight to the formal warning. Consequently, the Judge’s view of the
overall seriousness of the offending was flawed.
(b)All three flatmates supported his discharge without conviction, a matter not known to Her Honour.
(c) The consequences of conviction were more severe than the Judge apprehended because it was now clear the employer would likely dismiss the appellant for serious misconduct if the convictions were not quashed.
Analysis
[10] The relevant provisions are ss 106 and 107 of the Sentencing Act 2002. They provide:
106 Discharge without conviction
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2) A discharge under this section is deemed to be an acquittal. (3) A court discharging an offender under this section may—
(a) make an order for payment of costs or the restitution of any property; or
(b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—
(i) loss of, or damage to, property; or
(ii) emotional harm; or
(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:
(c) make any order that the court is required to make on conviction. (3A) Sections 32 to 38A apply, with any necessary modifications, to an
order under subsection (3)(b) as they apply to a sentence of reparation.
…
(5) Despite subsection (3)(b), the court must not order the payment of compensation in respect of any consequential loss or damage described in subsection (3)(b)(iii) for which compensation has been, or is to be, paid under the Accident Compensation Act 2001.
…
107 Guidance for discharge without conviction
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.
[11] Applicable principle is well-known.2 A Court must: (a) Identify the gravity of the offence;
(b) Identify the direct and indirect consequences of a conviction; and
(c) Determine whether the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the offending.
[12] It is common ground the Judge approached the application this way, albeit on
the appellant’s case, with the errors identified earlier.
Seriousness of the offending
[13] This argument was more fulsome than is yet recorded. The appellant invited close attention to the language used by the Judge in relation to various aspects of the case. So, for example, Mr Tomlinson submitted the Judge’s reference to the offending as betraying “a persistence and lack of insight” unfairly characterised the seriousness of the offending, and improperly coupled the first incident to the second. To give another example, Mr Tomlinson submitted the Judge was wrong to refer to the appellant being physically pushed out of D’s house by her flatmates, as it was not clear from the agreed summary that had happened. These arguments were advanced individually and as supporting the proposition the second incident was minor only, in
turn supporting the argument the Judges’ assessment of seriousness was wrong.
2 See for example, R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
[14] It is always open to an appellant to point to an alleged multiplicity of error. But the difficulty with this approach is that it often ignores the wood for the trees. So too here. The Judge was obliged to consider the seriousness of the offending overall. Having done so, it was open to Her Honour to conclude an element of persistence permeated all of the offending. In relation to the first incident, the appellant attacked all three flatmates with a pair of scissors—sequentially. And in relation to the second incident, the appellant knew he was unwelcome at the address
because the complainant had previously made that clear—at least twice.3
[15] As to being pushed out of D’s house, the agreed summary refers to the appellant refusing to leave, of D pushing the appellant to the front door, and of her flatmates then coming to her aid. True, the summary does not explicitly say they pushed the appellant outside, but whether it was D doing so with their help or encouragement is of little moment. The point remains the appellant had to be forcibly removed from a home he had unlawfully entered (at 5 am). In any event, contrary to the appellant’s more general submission, the Judge did not treat the second incident as an extension of the first. Rather, the Judge identified a common characteristic of persistence on the part of the appellant. That view was available on the facts and arguably, inherent to them.
[16] Neither did the Judge err in relation to her treatment of the appellant’s guilty plea. The Judge considered these relevant but not as mitigatory as might otherwise have been so, in part because of timing. The appellant pleaded guilty on 11 April
2016 after several court appearances. Mr Tomlinson submitted the appellant was entitled to seek full disclosure to assess the complexion of the prosecution case. I agree. But it still follows the appellant did not plead guilty promptly.
[17] Context is important. Police were called on both occasions, the appellant was arrested at the respective scenes, and the alleged offending was not of a technical or complex nature. It follows the appellant did not need disclosure to learn what he had allegedly done. As the Judge observed, the appellant accused all four victims of
fabrication. He initially denied the offending. The charges in relation to the first
3 The agreed summary referred to “multiple” occasions rather than at least twice, which I
understand to be the correct position. Any difference strikes me as fine.
incident went to a case review hearing. Moreover, the appellant was declined diversion because he would not accept responsibility for the offending. Consequently, the Judge did not err when concluding the appellant “did not take full responsibility” promptly.4 That assessment was fair.
[18] The final alleged error in relation to the gravity of the offending was the Judge’s treatment of a formal warning given to the appellant in November 2013 in relation to his flatmates. The Judge described this as “almost the equivalent of diversion”,5 and as a factor relevant to the appellant’s persistence of offending.6
Mr Tomlinson submitted the Judge had wrongly elevated something about which little was known—or ever proved as an offence.
[19] Standing back, the Judge appears to have been responding to a submission the appellant’s offending was out of character. Even so, there are obvious dangers in relying upon unproved matters of this nature, at least when they form no part of an agreed summary of facts, as was the case here (the fact was first raised in the prosecution’s submissions). But as against that, I did not understand the appellant to contest a warning had been administered. And more importantly, the issue adds little to the complexion of the case. The proposition can be tested by removing the alleged fact entirely from the mix and inquiring whether the result would have been the same. Plainly it would.
The views of A, B and C
[20] The Judge noted the appellant attended a restorative justice conference and there apologised to A, B and C. Since the Judge’s decision, each of these victims has prepared a short letter. Each says he is content with the appellant’s apology and supports the appeal. Each appears to see the curial process as sufficient penalty. Two of the letters are dated 11 August 2016. The other is dated 10 August 2016.
[21] It is not clear why this material was not prepared in a timely fashion. Nor is there an explanation as to why it was not placed before the Judge. It appears the
4 Police v Singh, above n 1, at [40].
5 At [32].
6 At [35].
appellant has sought material since the Judge’s decision. So, in this sense the material is not fresh.7 However, the material is relevant and cogent. Not to receive it could be unfair to the appellant. I admit it in the interests of justice.
[22] It is elementary law victims’ views are relevant to sentence,8 and a Court must take into account any offer of amends by the offender to the victim.9 It follows the view of a victim has relevance to the sentencing process. Here, the benevolent view of A, B and C tends to mitigate the offending.
[23] However, a victim is not the custodian of the public interest. And there are dangers in placing significant weight on the idiosyncratic reaction of a victim in relation to the commission of a criminal offence. To do so could lead to inconsistency in sentencing—and much worse. Public prosecutions are public in character for good reason. So too orthodox triangulation of criminal law interests— defendant, victim and public interest—which often clash.
[24] Moreover, if victim’s views were afforded great weight, pressure could be brought on them in order to affect sentencing outcomes. I am not suggesting that has happened here, but when a defendant tenders material of this nature, none of the procedural protections of the Victims’ Rights Act apply. Courts are ignorant of what the victims have been told, and what, if anything, they understand about process. All of this carries risk.
[25] The views of A, B and C represent a modest advance for the appellant, but this aspect goes no further. A counter-factual is illustrative. What if one of the flatmates, or all three, wanted the appellant to be convicted? Would that be decisive? Or to return to the actual facts, what of D’s position? She has not written asking for the appellant to be discharged without conviction. D’s victim impact statement records her as being “terrified”, particularly as she and her younger sister were sometimes on their own in the house. Does her position offset that of A, B and C?
Or just one of the three?
7 R v Bain [2004] 1 NZLR 638.
8 Victims’ Rights Act 2002.
9 Sentencing Act 2002, s 10(1)(a).
[26] To recapitulate, a victim’s view of punishment is relevant to sentence. However, particular care must be taken with this consideration. I am not persuaded the views of A, B and C materially change matters.
Employment consequences
[27] Unsurprisingly, Mr Tomlinson placed particular weight on this point. He invited my attention to a letter from the appellant’s employer dated 5 December 2016 in which it was made clear if the appeal failed, “we would be looking for [the appellant] to resign from his current employment with us”. The letter is ambiguous because it refers to the appellant being “accused of assault charges” and says nothing about the appellant’s guilty pleas. The letter is also silent on the offending in relation to D. However, Mr Tomlinson assured me the appellant’s employer knew all relevant circumstances.
[28] The letter does not explain what would occur if the appellant choose not to resign, or why a conviction is viewed differently than criminal conduct acknowledged through guilty plea (but absent conviction). In this context, it is not for me to second-guess the correctness of an employer’s view.
[29] As with the letters from A, B and C, this letter is not fresh evidence. It could and should have been placed before Judge Jelas. Again, there is no explanation why it was not obtained earlier. But as with the correspondence from the flatmates, the letter is relevant and cogent. Its exclusion could be unfair to the appellant. I admit it in the interests of justice. And I proceed on the assumption the appellant’s dismissal is highly likely if not quite certain by virtue of the fact of a conviction. That outcome would affect the appellant’s parents too.
[30] However, the position is not greatly changed from that before the Judge. Her Honour noted the appellant’s employment contract provided for dismissal in the event of serious misconduct, which includes but is not limited to conviction of a criminal offence. The Judge concluded there was “a real and appreciable risk” the
appellant’s employer would re-assess the appellant’s suitability for his role.10 And,
10 Police v Singh, above n 1, at [45].
Her Honour was of the view termination of the appellant’s employment, whether alone or in conjunction with deportation, would not be out of all proportion to the gravity of the offending.
[31] I am not persuaded the Judge erred or that a different result follows from fresh consideration of the case in light of the letter and for completeness, those from A, B and C and the various other matters raised by Mr Tomlinson:
(a) The Judge considered the offending, overall, moderately serious. It was at least that:
(i)The appellant assaulted three people with a weapon. He threatened to kill. His partner had to intervene (twice). So too Police. True, the weapon was a pair of scissors. And no one was hurt. But events of this nature can quickly escalate even when no actual harm is intended.
(ii)The second incident occurred while the appellant was on bail for the first. Notwithstanding Mr Tomlinson’s submissions to the contrary, it was not minor. The appellant unlawfully entered a home, obviously with a view to some form of contact with D. He knew she did not want that. And he waited for her outside the bathroom. He did not leave despite repeated requests to do so. Again, Police had to intervene. D was terrified.
(iii)The appellant’s guilty pleas avoided a trial and mitigated the offending. But not greatly. He accused the victims of fabrication. And the pleas were not entered early. The appellant apologised to the victims during a restorative justice conference but he also refused to accept responsibility sufficient for diversion. His actions to atone appear mixed, even confused.
(iv)The appellant’s personal circumstances also mitigated the offending, perhaps significantly. But it still remains difficult to treat the offending as wholly out of character given there are two separate incidents; each of which has its own troubling aspects; a related breach of bail; and an overall thread of something being amiss.
(b)The direct and indirect consequences of conviction are serious. It is highly likely the appellant will lose his job. That would affect his parents. He may also be deported, albeit that decision is for others. The appellant’s future is at best uncertain. At worst, it involves job- loss and a (forced) return to India.
(c) But these consequences are not out of all proportion to the gravity of the offending, even when personal and other mitigating features re- enter the mix. The offending involved a violation of others’ autonomy. Violence is treated seriously by the Courts even when, through luck, no one is harmed. So too property intrusions, albeit the offending in relation to D is better conceived as a serious violation of her privacy.
(d)One last point is important. Discharge applications can produce tunnel vision through focus upon the straitjacketed statutory criteria at the expense of asking an otherwise obvious question: what is the overall appropriate type or level of sentence? Here, the appellant received a term of supervision for conduct that could well have attracted a more severe response. In this sense he was fortunate.
[32] The appeal is dismissed.
……………………………..
Downs J