Singh v Police
[2015] NZHC 2003
•24 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-173 [2015] NZHC 2003
BETWEEN JAGJOT SINGH
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 24 August 2015 Counsel:
S Walker for the Appellant
N T Fletcher for the RespondentJudgment:
24 August 2015
JUDGMENT OF DUFFY J
Solicitors:
Crown Solicitor, Manukau
Public Defence Service, Manukau
SINGH v NEW ZEALAND POLICE [2015] NZHC 2003 [24 August 2015]
[1] The appellant pleaded guilty and was sentenced to eight months’ imprisonment on one charge of doing an indecent act on a boy between 12 and 16 years.1 He appeals on the basis that the starting point of 12 months’ imprisonment adopted by the Judge was manifestly excessive and further, that the Judge failed to consider an appropriate community based sentence.
[2] At the end of the hearing I allowed the appeal and imposed a substituted sentence of 250 hours’ community work. My reasons now follow.
Background
Summary of Facts
[3] The appellant, Jagjot Singh, was employed as a security guard by Armour
Guard Security. He provided security at the Manuerewa Train Station. On 2
December 2014, the appellant was working as a security guard at the Station. At approximately 10:25 pm he approached the complainant, a 13 year old boy, who was sitting at the train station platform.
[4] A conversation ensued between the appellant and the complainant for approximately ten minutes, during which time the appellant placed his right hand on the complainant’s left thigh. The appellant then placed his arm on the victim’s back, leant over and kissed the complainant twice on the mouth.
[5] The appellant was 24 at the time of the offending.
Pre-sentence report
[6] The appellant is Indian and entered New Zealand on a student visa. He was then granted a twelve month work permit which expired on 23 May 2015. The appellant’s mother and brother remain in India and the appellant had provided financial support for them. The appellant’s father had recently died in a traffic
accident.
1 Crimes Act 1961, s 134(3).
[7] The appellant’s employment at Armour Guard was terminated due to the current offending, as it was committed while the appellant was at work. The appellant is a strong follower of the Sikh religion. He attends a Temple on a daily basis and undertakes volunteer work at the Temple. The appellant was not employed at the time the report was written and was not in receipt of any form of benefit. He received some income from casual farm work and goodwill from members of the Temple.
[8] The report writer noted that the appellant has no previous convictions in New Zealand or in India. The appellant accepted the police summary of facts, although he stated that the complainant had instigated the interaction. The appellant had written a letter of apology to the complainant, but was unable to discuss why he committed the offending. While he expressed remorse, the appellant was very concerned about the possible effect the offending would have on his immigration status.
[9] The report writer assessed the appellant as posing a low risk of harm to others and a low risk of re-offending, based on having no history of previous violent offending or any other offending.
[10] The report writer had not assessed an electronically monitored sentence because the appellant was living in temporary accommodation, had been unable to provide an alternative address and did not wish to sign the offender consent form. The report states that if an electronically monitored sentence was to be considered a further remand was recommended to canvass an alternative address.
[11] The report recommended a sentence of imprisonment to enforce to the appellant that the offending would not be tolerated and to hold him to account for his actions.
Sentencing
[12] The appellant was sentenced in the Manukau District Court on 18 June 2015 by Judge HM Simpson. The Judge first noted that the charge was serious and fell within the category of offending that requires the Court to give a three-strikes
warning. The Judge also noted that the appellant first entered a not-guilty plea but changed this to guilty after CCTV footage of the offending emerged. The Judge also stated that any kind of sexual offending against children would be met with heavy penalties and the principles of denunciation and deterrence took precedence.
[13] Judge Simpson then noted the circumstances of the offending, in particular that:
(a) The appellant’s role had been to protect the public and keep the victim safe. The offending therefore involved a substantial and significant breach of the trust of the appellant’s employer and the public.
(b)The victim was particularly vulnerable because it was night. He felt that he had to stay at the station until his train came.
(c) The victim told the appellant that he was aged 17, presumably to show that he was less vulnerable than he really was. However, the fact that he was in a school uniform must have shown the appellant that he was a youngster.
(d) There was no doubt that the offending involved unwanted touching.
[14] Judge Simpson also referred to two cases: R v Eraki where a taxi driver had touched the passenger in an inappropriate way including kissing the victim.2 The Judge considered that situation was different as the passenger was a mature woman and the offending occurred while her husband was nearby. Her Honour noted that in R v Tamaiparea this Court had considered the level of touching, the scale and duration of the offending, the breach of trust, premeditation and harm to the
complainant to be the relevant factors when fixing the appropriate sentence.3
2 R v Eraki CA 73/03, 1 April 2003. A sentence of five months’ two weeks imprisonment was imposed on appeal. In this case imprisonment was seen as appropriate because of the breach of trust involved: the appellant had represented that he was a taxi driver although at the time of the offending he was unable to work as one. The Court also noted that, in imposing a sentence of imprisonment, the sentencing Judge was understandably influenced by the repudiation of an earlier guilty plea and the appellant’s allegation that the complainant had offered to drop the charge if he paid her money.
3 R v Tamaiparea [2015] NZHC 74.
[15] Applying those factors, Judge Simpson considered that the appellant had never previously appeared before the Court, the touching took place over a very short period of time, it involved a breach of trust because of the appellant’s position and the youth of the complainant, and the offending did not appear to have been premeditated. The Judge noted that she did not have any details about the extent of the harm suffered by the complainant. The appellant had pleaded guilty at the case review hearing, a relatively early stage.
[16] The Judge considered the appellant’s submission that the offending was relatively low-level and could be dealt with by way of a community-based sentence, noting that the pre-sentence report recommended imprisonment, that the appellant was not working and that he received support from members of his faith community. She considered that “in view of the serious nature of the offending” a sentence of imprisonment was warranted, noting further that “[t]here was no element of consent in this matter, this was an indecent assault perpetrated by a stranger in a position of responsibility”.
[17] On this basis the Judge adopted a starting point of 12 months’ imprisonment, and, giving an allowance for the guilty plea and previous good character, arrived at an end sentence of eight months’ imprisonment.
[18] The appellant filed a notice of appeal on 24 June 2015. He applied for bail on 2 July 2015. This was not opposed and was granted by Judge Andrée Wiltens.
Submissions
Appellant’s submissions
[19] The appellant submits that the starting point adopted was too high; first because the appellant’s lack of previous convictions should have been taken into account in the starting point; secondly because the Judge incorrectly characterised the offending as of a “serious nature”, and thirdly because the Judge placed undue significance and weight on the lack of consent.
[20] In relation to the second point, the appellant submits that, as the Judge recognised, the physical contact occurred over a very short period of time and there was no premeditation. The appellant also refers to two comparable cases where the offending was described as being of a low level of seriousness.
[21] The first case is RG v Police where the appellant appealed a non-association order imposed as part of a sentence of 150 hours’ community work and 12 months’ supervision. The appellant had been sleeping in the same bed as his sons and 13 year old niece, and awoke to her touching his penis. He placed his hand on the outside of her vagina, over clothes, for approximately two minutes. Katz J allowed the appeal against the condition that the appellant not associate with anyone under
16, as the appellant had four children under 16. The appellant states that Katz J noted that the offending was at the lower end of the scale, and took no issue with the substantive sentence. The appellant states that this offending was more serious, as it involved touching the complainant’s genitalia and the abusive of trust was arguably greater given the family context.4
[22] The other case relied on is Logan v Police where Lang J substituted a sentence of six months’ home detention with 250 hours community work.5 The appellant had been working promoting the Rugby World Cup. He met a 15 year old girl, they exchanged numbers and later met in the evening, where the appellant kissed the complainant and touched her on the breasts and bottom. The appellant put his hand down her pants but stopped when she protested. Lang J classified the offending as towards the lowest end of the scale in terms of seriousness and the length of time over which they occurred. The appellant notes that while the
complainant was older, the case involved touching the complainant’s breasts and bottom and an attempt to put the appellant’s hand inside the complainant’s pants. Additionally, the appellant had not pleaded guilty.
[23] The appellant relies on these cases, first, to show that the offending, arguably more serious than in the present case, was described as low level and additionally as
4 RG v Police [2015] NZHC 72.
5 Logan v Police [2013] NZHC 1631.
authority for the imposition of a sentence of community work in similar circumstances.
[24] In regards to the third point of appeal, the appellant takes issue with the Judge’s conclusion that “there was no doubt that the offending involved unwanted touching”. The appellant submits that there was some case for consent being a mitigating factor in the offending. In any event, as the summary of facts did not mention consent or lack of consent, this issue should have been put to one side.
[25] Finally, the appellant submits that there was no consideration or discussion as to whether home detention or community detention were more appropriate options. This is despite the police stating in their written submissions that the Court might consider an electronically-monitored sentence was appropriate.
[26] Accordingly, the appellant submits that community work would be an appropriate sentence based on the relevant case law. Alternatively, an adjournment could be granted for Mr Singh’s current address to be canvassed for an electronically monitored sentence.
Respondent’s Submissions
[27] The respondent accepts that the sentence of eight months’ imprisonment was not the least restrictive sentence appropriate in the circumstances given the appellant’s relative youth, lack of previous convictions, remorse and low risk of reoffending. The respondent accepts that this type of offending would not usually attract an end sentence of imprisonment.
[28] The respondent also states that it is apparent from the Police’s submissions on sentencing that they referred to facts in the offending that were not in the amended summary of facts to which the appellant pleaded guilty, and that some of these found their way into Judge Simpson’s decision.
[29] The respondent relies on three comparable cases to submit that a community- based sentence would have satisfied the purposes and principles of sentencing.6
[30] I am grateful to the respondent for the responsible approach that it has taken to this appeal.
[31] The respondent submits that if a community-based sentence is not available the respondent agrees that it would be appropriate for an electronically monitored sentence at an alternative address to now be considered.
Discussion
[32] This is an appeal against sentence under s 250 of the Criminal Procedure Act
2011. Accordingly, the appeal must be allowed if I am satisfied that, for any reason, there is an error in the sentence imposed, and a different sentence should be imposed.7 This section was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957.8 Accordingly, the appellant must demonstrate some error on the part of the sentencing court.9
[33] The decision to impose a sentence of home detention rather than imprisonment involves the exercise of discretion. When discussing this choice the Court of Appeal in R v D noted:10
[66] In a case like this, the sentencing Judge is required to form a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending. The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other. In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight. He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another. The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.
6 R v Eraki, above n 2, cited by Judge Simpson; Tini v Police [2013] NZHC 2143; and Logan v
Police, above n 5, also relied on by the appellant.
7 Criminal Procedure Act 2011, s 250(2).
8 Tutakangahau v R [2014] NZCA 279 [2014] 3 NZLR 482 at [26].
9 R v Shipton [2007] 2 NZLR 218 (CA) at [138].
10 R v D [2008] NZCA 254.
[34] More recently, in Fairbrother v R the Court of Appeal stated that:11
[29] Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.
[30] That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[35] I consider that the seriousness of this offending is analogous to the offending in RG v Police and Logan v Police. I agree with Judge Simpson that the offending involved a breach of trust, occurred at night making the complainant vulnerable, and involved a young 13 year old boy, although he had told the appellant he was 17. However, the incident was brief involving “transitory kissing” and touching over the top of the complainant’s clothes. There was an early guilty plea. The appellant has no previous convictions and has expressed his remorse for his offending.
[36] In relation to the Judge’s decision to impose a custodial sentence, I consider that this decision was made in error. The judgment shows that Judge Simpson focused on the principles of denunciation and deterrence, which she considered would take precedence as “any kind of sexual offending against children would be met with heavy penalties.” I consider that her judgment was influenced by her classification of the offending as serious. Her reason for rejecting a community- based sentence seems to be that there was “no element of consent in this matter, and this was an indecent assault perpetrated by a stranger in a position of responsibility.”
[37] In my view, there was inadequate consideration of whether the objects of denunciation and deterrence as well as the other principles in the Sentencing Act could be addressed by a sentence of home detention or community based sentence. The appellant was assessed at a low risk of reoffending, had never previously offended, expressed remorse for the offending and pleaded guilty. In these
circumstances I agree with both parties that a community based sentence is appropriate in line with the requirement in s 8(g) to impose the least restrictive sentence appropriate.12
[38] As to the choice of a community based sentence, in the present case the appellant served two weeks of the sentence of imprisonment. Given his age and background this experience must have been a short, sharp shock. I expect it would have had a salutary effect on him. In all the circumstances I consider that a sentence of 250 hours community work is appropriate for his offending.
Result
[39] The appeal is allowed. The sentence imposed in the District Court is set aside. In its place the appellant is sentenced to 250 hours of community work.
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