Singh v Police

[2016] NZHC 1739

IN THE HIG H COURT O F NEW ZEALAND AUCKLAND REG ISTRY

CRI-2016-404-000171 [2016] NZHC 1739

IN THE MATTER OF	an appeal against sentence
BETWEEN	JASON VIRENDRA SINGH Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	26 July 2016
Counsel:	R P Chambers for the Appellant H D Benson-Pope for the Respondent
Judgment:	29 July 2016

JUDGMENT O F EDWARDS J

This judgment was delivered by Justice Edwards on 29 July 2016 at 11.30 am, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Counse l:     R P Chambers, Auckland

Solic itors:     Kayes Fletcher Walker Limited, Auckland

SINGH v POLICE [2016] NZHC 1739 [ 29 July 2016]

Introduction

[1]      Mr  Singh  pleaded  guilty  to  23  charges  for  a  spree  of  burglary  related offending.  He was sentenced to three years’ imprisonment i n the District Court. 1   He appeals  that  sentence  on  the   grounds  that  the  starti ng  point  of  five  years’ imprisonment adopted by the Judge was too hi gh, and the discount given for his personal miti gati ng factors was inadequate.

Background

[2]      Mr Singh pleaded guilty to the following char ges: (a)  Eight charges of burglary;2

(b)      Ten charges of using a document for a pecuniary advantage; 3

(c)      Two charges of receiving;4

(d)      One charge of theft;5

(e)      One charge of possession of i nstr uments for burglary; 6 and

(f)       One char ge of possession of utensils for consumption of controlled drugs.7

[3]      The offendi ng giving rise to  the charges occurred between 13 September

2015  and  8  October  2015.    Over  this  period,  Mr  Singh burgled  eight different residential addresses, stole items out of a car parked in an enclosed yard, pawned a

number of items of property, and made various purchases using stolen bank cards.

1       Police v Singh [2016] NZDC 10489.

2       Crimes Act 1961, s 231.  Maximum penalty 10 years’ imprisonment.

3       Crimes Act 1961, s 228(b). Maximum penalty seven years’ imprisonment.

4       Crimes Act 1961, ss 246 and 247. Maximum penalty one year ’s imprisonment.

5       Crimes Act 1961, s 223(d).  Maximum penalty three months’ imprisonment.

6       Summary Offences Act 1981, s 14.  Maximum penalty three months’ imprisonment or a $2,000

fine.

7       Misuse of Drugs Act 1975, s 13(1)(a) and 13(3).  Maximum penalty one year ’s imprisonment or

a $500 fine.

[4]      Four of the eight burglaries were committed at ni ght.   In three of these the victims were at home and asleep.   Two victims were also present duri ng another burglary committed in the dayti me.

[5]      Various items were taken during these burglaries, including guitars, video cameras, laptops, televisions, jewellery and other electronic items.   Items valui ng approxi mately $10,000 were taken by Mr Singh duri ng one of the bur glaries, with the total value of property taken amounting to approxi mately $26,500.

[6]      Many of the items stolen by Mr Si ngh were subsequently paw ned, either the next day or within a week of being stolen.   The two receiving char ges involved receipt of a number of electronic items incl uding Playstation and X-box gami ng consoles with a value of approxi matel y $1,200.

[7]      Mr Singh also stole a number of bank cards duri ng his month long spree and this  offendi ng  gave  rise  to  the  10  charges  of  using  a  document  for  pecuniary advantage.  The amounts taken totalled $450.

[8]      The  theft  from a  car  charge  i nvolved  Mr  Singh  removing  several  cards includi ng a driver’s licence, student ID and bank card from an ( unlocked) car which was parked in the driveway of a residential home.

[9]      On 8 October 2015, police executed a search warrant at Mr Singh’s home. They located two glass pipes used to smoke methamphetami ne, two screwdrivers, a hammer and a glove inside a large black sports bag, and items taken from several of the burglaries.  As a result, Mr Singh w as charged with possession of utensils for the consumption of controlled drugs and possession of i nstr uments for burglary.

Sentencing decision

[10]     The  Judge  commenced  the  sentenci ng by referring  to  the  offendi ng and noting that at the age of 25, Mr Si ngh had two convictions from 2008 and 2013, neither of which was relevant to the sentencing exercise.  He also referred to a report from Dr Woodcock of the Auckland Psychiatric Association.  That report concluded

that  Mr  Si ngh  suffered  from  antisocial  personality  disorder  and  ADHD,  and recommended a sentence which focused solely on rehabilitation.

[11]     In ter ms of a starting poi nt, the Judge considered that the seriousness of the offending had to be assessed by looki ng at the more serious charges of burglary.  The Judge adopted a starting poi nt of five years’ imprisonment for the totality of the offending.

[12]     After  addressing the  starti ng point,  the  Judge  then went on to  state  that Mr Singh was 25, had no relevant previous convictions and had been on EM bail with a 24 hour curfew since October (some seven months).   He then stated “I can give  you  a  discount  for  your  pleas  but  that  is  all”.    The  Judge  recorded  that Mr Singh’s  personal  circumstances  were  of little  significance  given the  spate  of offending he had to deal with, the need to hold hi m accountable, deter and denounce his offendi ng.

[13]     The Judge deter mined that the least restrictive outcome was a sentence of three years’ imprisonment to be i mposed concurrently for the burglary and using a document offences, and concurrent sentences of one  month i mprisonment for the other offending.

Approach on appeal

[14]     Section 250(2) of the Cri mi nal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:

(a)      for  any  reason,  there  is  an  error  in  the  sentence  i mposed  on conviction; and

(b)      a different sentence should be imposed.

[15]     In any other case, the Court must dismiss the appeal.8   The Court will rarely intervene where the sentence is within the range that can properly be justified by accepted sentenci ng pri nciples.  The Court of Appeal has also held that despite s 250 maki ng  no  express  reference  to  “manifestly  excessive”,  this  principle  is  “well - engrained” i n the Court’s approach to sentence appeals.9   Whether an end sentence is mani festly excessive is to be exami ned i n ter ms of the sentence given, rather than the process by which the sentence is reached. 10

[16]     The methodology by which the Judge reached the end sentence i n this case is not clear from the sentenci ng notes.  To ascertain w hether the re is a material error rendering the end sentence manifestl y excessive, I have considered the appropriate starting poi nts and adjustments for miti gati ng factors.

Starting point

[17]     Mr Chambers, on behalf of Mr Singh, submi ts that the starting poi nt was too hi gh.  He submits a starting point of 18 to 24 months would have been appropriate for  the  lead  offences,  with an  uplift of eight  months  to  one  year  for  the  other offending.

[18]     In Arahanga v R, the Cour t of Appeal held that there was no tariff case for burglary because of the wide variety of circumstances in which the offendi ng can be committed.11    The  Court  observed  that  burglary  of  a  domestic  residence  is  a signi ficant aggravating feature due  to  the  hei ghtened risk of confrontation, as is offending occurring at night when the occupants are asleep.12   Other factors relevant to the assessment of the gravity of the offendi ng incl ude: the degree of planning and sophistication, the nature of the premises entered, the ki nd and val ue of the property stolen, the damage do ne, the potential impact upon the owners or occupiers of the

property, and, w here there are multiple burglaries, the extent of offendi ng. 13

8       Criminal Procedure Act 2011, s 250(3).

9       Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].

10      Ripia v R [2011] NZCA 101 at [15].
11      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

12 At [77].

13      R v Nguyen CA 110/01, 2 July 2001.

[19]     The  Court  of  Appeal  in  Arahanga  v  R  observed  that  dwelling- house burglaries at the relatively mi nor end of the scal e tended to attract a starti ng point of approxi mately 18 months to two years, six months’ imprisonment. 14  At the other end of the scale, starting poi nts ranging from three years and si x months to four years’ imprisonment for a serious hi gh value residential burglary have been held to be appropriate.15

[20]     In Swinburne v R, a starting point of three years, six months’ imprisonment for three bur glaries involving entr y into dwelling-houses during the dayti me and taki ng property of $13,531 was upheld.  No occupants were present at the ti me the burglaries were committed. 16

[21]     In Makene  v  R, an overall starting point of three  years,  six  months  was similarly upheld for eight counts of bur glary and two counts of sexual connection with a young person.   The burglaries were of residential properties while no occupants were present.   The total value of the property taken was approximatel y

$33,400.17

[22]     The starti ng point adopted in those two cases is consistent with the three years, six months starting poi nt adopted for seven charges of burglar y and three of attempted burglary in Fonua v New Zealand Police.18     Those burglaries were of residential properties when no occupants were present and $3,000 worth of goods was taken.

[23]     Mr Chambers referred to the review of sentences i mposed in bur glary cases in Osborne v Police which had significantl y lower starting points for burglaries than those canvassed in the above cases.19    The decisions reviewed in that case relate to sentences imposed between 1995 and 2000.  The case of Osborne was itself decided

in 2002.   In my view, the principle of parity is best met by considering sentences

14      Arahanga v R, above n 11, at [78].

15      Penniket v R [2016] NZCA 154 at [40]–[43]; Harrison v R [2011] NZCA 80; and Marsh v R

[2010] NZCA 445.

16      Swinburne v R [2010] NZCA 568 at [8] and [15].
17      Makene v R [2013] NZCA 178 at [13]–[14].

18      Fonua v New Zealand Police [2015] NZHC 2360.

19      Osborne v Police HC Whangarei AP 21/02, 13 May 2002.

imposed in the more recent cases which were decided under the Sentenci ng Act 2002 and in li ght of guidance from the appellate courts.

[24]     Mr Chambers also referred to the cases of R v Povey and Stepanicic v R.20   I n R v Povey, the Cour t of Appeal accepted that a two year starting poi nt for a burglary of an upstairs residential apartment during the night when the victi m was present, was within range.   In that case the value of the property taken was very low, but there  were  other  aggravati ng  features  which  made  the  two  year  starti ng  point appropriate.  The Stepanicic case involved two burglary charges for offending i n the early hours of the mor ni ng when the occupants were present.  Items taken incl uded a cellphone, camera, keys, wallets, a laptop, Playstation and jewellery.   A two year starting poi nt was adopted by the Court of Appeal in that case also.

[25]     The number of burglaries in Mr Singh’s case (eight) is signi ficantly higher than the si ngle bur glary at issue i n R v Povey, and the two bur glaries at issue in Stepanicic v R.   The value of the property taken (approxi matel y $26,500) is also signi ficantl y higher than in either of those cases.  Other aggravating featur es include the fact that four of the burglaries occurred at night, and three when the victi m was asleep.  On two occasions Mr Singh gained entr y by smashing a window or a door and personal items, incl uding jewellery, electronics and bank cards were taken.

[26]     I consider the cases of Makene v R, Swinburne v R and Fonua v R to be comparable given the multiple burglary charges and value of items taken in those three cases.   I therefore consider a starting point of three years, six months’ imprisonment for the eight burglary offences to be appropriate.

Uplift

[27]     An uplift on the starting poi nt is required for the other offences.  Mr Si ngh submits that an uplift of between eight to 12 months for the other offendi ng would be appropriate in this case.   The Crown submi ts t hat an uplift of 12 to 18 months is

within range.

20      R v Povey [2009] NZCA 362; and Stepanicic v R [2015] NZCA 211.

[28]     Having regard to the appropriate starting poi nts for each of those charges if considered individually,21 the gravity of the offending w hich took place over a shor t period of ti me,22  and totality, I am satisfied that an uplift of 12 months would be appropriate for the other offending i n this case.

[29]     This would bri ng the starti ng poi nt to four years, six months’ i mprisonment. Although that is lower than the starti ng point adopted by the Judge, this does not mean that there has been a material error vitiating the end sentence.   It is the end sentence which is relevant on appeal, rather than the process by which that sentence was fixed.

Personal mit igating factors

[30]     Mr Singh submi ts that the Judge failed to take into account his youth, lack of previous serious offendi ng, the report by Dr Woodcock, pre-sentence report and ti me spent on EM bail, in fi xing the end sentence.

[31]     Crown counsel submi ts that a total discount of 40 per cent was applied so as to reduce the sentence from the starting poi nt of five years’ imprisonment to the end sentence of three years’ imprisonment.  It is not clear from the sentencing notes how the discount was calculated.  Crown counsel suggests that it comprises a 25 per cent discount for  the early guilty plea, and a 15 per cent discount for other personal mi tigating factors.  The Crown submits that a 15 per cent discount was withi n range for the various factors raised by Mr Singh and fur ther discount is not justified.

[32]     I take each of the factors raised by Mr Singh in tur n.

[33]     First, the issue of Mr Singh’s age. An offender ’s youth may justify a discount

in certain cases.  Young people are more vul nerable to negative influences and may have a tendency to greater i mpulsivity than adults.  The effect of i mprisonment on

21      Starting points for the offence of receiving were canvassed in Andrews v Police [2015] NZHC

2496 at [32]. Similarly, starting points for the dishonest use of a document offence were considered by the Court of Appeal in Rako v R [2015] NZCA 463 at [9].

22      The two receiving charges involved property worth approximately $1,200.  The ten charges of using a document for a pecuniary advantage related to the use of cards resulting in $450 being

taken.

young people  and  the  usually greater  capacity for  rehabilitation are  also factors which can contribute to discounts given for youth. 23

[34]     However, at 25 years of age, Mr Singh can no longer be considered a youth. In Tukaki v R, the Court considered that at 19 the offender was at the upper end of the age range which mi ght justify a separate discount for youth. 24 In R v Blackburn, Allan J  considered  the  25  year  old  offender  was  too  old  for  a  separate  youth discount.25    In R v Zheng, Winkel mann J considered no discount was available to a

24 year old.26   I do not consider that Mr Singh’s age warrants a separate discount.

[35]     Second, the lack of previous serious offending.  The Judge clearly had regard to this factor when sentencing Mr Si ngh.  The sente nci ng notes record the Judge’s observation  that  the  spree  of  offendi ng  seemed  out  of  character  and  that  for sentencing purposes Mr Singh would be treated as a first time offender.   In any respect, I do not consider that this factor alone would j ustify a di scount from the starting poi nt.  Whilst the prior convictions are of no real relevance, Mr Singh cannot point to an entirely clean record prior to the offending i n question.  There is also no other indication of positive contribution prior to the offendi ng that mi ght justify a discount for previous good character.

[36]     Third, Mr Singh’s mental health.   As already noted, Dr Woodcock’s report was referred to in the Judge’s sentenci ng notes.  That report concluded that Mr Si ngh had an antisocial personality disorder which he described as follows:

... individuals  suffering from ADHD  or an Antisocial Personality  Disorder have difficulties  with  impulse  control.  There  is a risk taking,  thrill seeker component   to  both,   but  the  individual  with  the  Antisocial  Personality Disorder will typically have less regard for their own safety and the safety of others  than the person  with ADHD.  I believe  that  the most distinguishin g feature is the lack of empathy found in persons with Antisocial Personality. There is a disregard for the feelings of others and a lack of appropriate guilt over their own inappropriate or hurtful behaviour.

[37]     Mental health conditions which are causative of the offending can moderate

an  offender ’s  culpability.     Such  conditions   may  also  render  a  sentence  of

23      See for example Arahanga v R [2014] NZCA 379 at [26].

24      Tukaki v R [2013] NZCA 411 at [18].

25      R v Blackburn [2013] NZHC 151 at [19].

26      R v Zheng [2012] NZHC 1102 at [8].

imprisonment less appropriate in some cases.   However the Court of Appeal has cautioned  that  w hilst  mental  disorder  may  mi tigate  moral  fault,  and  therefore criminal culpability, care must nevertheless be taken w hen assessing the i mpact of mental illness.27

[38]     Dr  Woodcock’s  report does  not draw  an obvious  causative  link between Mr Singh’s disorder and the offending.  It would be well within a sentencing j udge’s discretion not to grant a discount i n those circumstances i n my view.  Nevertheless, I accept that difficulties with i mpulse control and a lack of empathy may have played a part in the offendi ng.   I therefore consider a very small discount ( two months) would be appropriate to recognise that aspect of Mr Si ngh’s personal circumstances.

[39]     I agree with Mr Chambers’ submission that the report is also relevant to assessing Mr Singh’s rehabilitation needs.  Those needs mi ght be met by the various programmes available in prison, and as assessed by the parole board, and do not justify a separate or different sentence to that of i mprisonment in my view.

[40]     Fourth, the pre-sentence report.  The observations made in the pre-sentence report are that Mr Si ngh did not express remorse for his offending, empathy for his victims, or demonstrate any insight into his offendi ng.  His likelihood of reoffendi ng was assessed as high.  There is nothing i n that report which would require a separate discount in my view.

[41]     Fifth and fi nally, there is the seven months spent on EM bail subject to a 24 hour curfew.  Mr Singh was only per mitted to leave the house to attend court or pre- arranged legal visits.   However, he was not fully compliant with these conditions with a curfew breach in February and in May 2016, although the Crown accepts that

both were technical in nature. 28    In light of these factors and the guidance on such

27    Nelson v R [2014] NZCA 121 at [22]. In that case the Court of Appeal upheld a discount of approximately 6 per cent for the appellant’s personal circumstances which included physical, sexual and psychological abuse by his stepfather. The Court considered this recognition was appropriate given that the reports before the court did not assess the extent to which any of the factors were causative of or mitigated the appellant’s offending.

28    Mr Chambers advised from the bar that one of these occasions involved Mr Singh inadvertently breaching curfew in order to meet with Mr Chambers.

discounts  from  recent  Court  of  Appeal  authority, 29    I  consider  a  discount  of six months would be appropriate to recognise this factor.

[42]     Those discounts reduce the starti ng poi nt to 46 months.

[43]     There is no dispute that a 25 per cent discount for the early guilty plea was appropriate in this case. Application of that discount would result in an end sentence of  34.5  months,  or  approxi mately  six  weeks  less  than  the  three  year  sentence imposed in the District Court.

End sentence

[44]     Overall, the end sentence I have reached by considering the starti ng point for the offendi ng, and the i ndividual discounts  for personal  mitigating factors is not substantially different to the end sentence i mposed by the Judge.  Any i nter ference would be tinkeri ng only.  The end sentence is not therefore manifestl y excessive, and there are no grounds upon which this Court should inter fere.

Result

[45]     The appeal is dismissed.

Edwards J

29    Rangi v R [2014] NZCA 524 at [10]; and Hohipa v R [2015] NZCA 485. In that case a 12 month discount for 14 months spent subject to a 24 hour curfew was gi ven. The appellant was fully compliant. He was allowed to leave the property to attend court, go to his lawyer ’s office and to buy food once a week. There was also a one-off trip to visit family.