Singh v Police

[2013] NZHC 718

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000420 [2013] NZHC 718

BETWEEN  BALRAJ SINGH Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         8 April 2013

Appearances: T D Clee for Appellant

M K Regan for Respondent

Judgment:      11 April 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 11 April 2013 at 2:00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

Solicitors:           Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – [email protected]

Counsel:             T D Clee, Private Bag 92185 Victoria Street W, Auckland 1142

Fax: [phone] – Email: [email protected]

SINGH V NZ POLICE HC AK CRI-2012-404-000420 [11 April 2013]

Introduction

[1]      Balraj Singh aspires to become a chartered accountant.   However, he has been convicted of two breaches of a protection order, assault and theft.  He sought to be  discharged  without  conviction  but  Judge  Johns  refused  that  application.1

Mr Singh appeals the Judge’s decision in relation to the theft conviction.  He asserts that the Judge was wrong to conclude that the consequences for him of a conviction for theft did not outweigh the gravity of the offending.

[2]      Under s 106(1) of the Sentencing Act 2002 the Court may discharge a person without conviction.  However, s 107 precludes any such order 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”.  Section 107 requires a judge contemplating an order under s 106 to consider, first, the gravity of the offence (taking into account all the aggravating and mitigating factors relating to the offender and the offence), secondly, the direct and indirect consequences of a conviction and, thirdly, whether those consequences are out of all proportion to the gravity of the offence. Whilst it is not necessary to show that the anticipated consequences are inevitable, there must be as significant risk of that happening, described by Randerson J in Iosefa v Police as a

real and appreciable risk2; a speculative possibility is not sufficient.  It is only once

this assessment has been made and the Court is satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offending that the discretion can be exercised.3

District Court sentencing

[3]      The breaches of protection order and assault charges related to offending against Mr Singh’s former partner in 2011.  Mr Singh pleaded guilty to the assault charge and one of the breach of protection order charges.  He was convicted of the other breach of protection order charge following a defended hearing.   The theft

conviction related to the theft of a jacket from a restaurant in Queenstown in 2012

1 New Zealand Police v Singh DC Manukau CRI-2011-004-012344.

2 Iosefa v Police HC Christchurch CIV 2005-409-64 21 April 2005 at [34]

3 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8]; Z v R [2012] NZCA 599 at [8].

and Mr Singh pleaded guilty to that charge.  He arranged to have the sentencing for that charge undertaken in Auckland at the same time as the sentencing for the three other charges for reasons of convenience.

[4]      Mr Singh’s application for an order under s 106 appears to have been made in respect of all the charges without distinction between them and that is the way the Judge dealt with the application.  Other than an initial reference to the theft charge, the Judge focused mainly on the assault and breach of protection order charges.  She concluded that:

[13]     Whilst  I  accept  that  each  individual  offence  is  not  particularly serious, the overall picture, in my view, means that the gravity of your offending is not at the lower end of the scale.  It is repeat offending, as I say, with complete disregrard to the rights of this victim and also in breach of a Court order and a breach of a bail condition.

[14]      In terms of the consequences, I acknowledge, as I have already said, that it may affect your ability to continue in your career, but my view is that you would have been well aware that that was a likely outcome of this type of offending yet you chose to behave in the way that you did.

[15]      I am not satisfied on the material before me that the consequences to you outweigh the gravity of the offending.  It would, in my view, be entirely inappropriate to send a message to the community that you can offend on three separate occasions (three of the offences against the same victim) and then be discharged without conviction.

[5]      I consider that, although Mr Singh’s counsel appears to have made the application for a discharge without distinguishing between the various offences, they neverthelss  could,  and  should,  have  been  considered  separately.    The  offences against Mr Singh’s former partner were very different in nature and separated in time from  the  theft  charge.    Further,  given  that  Mr  Singh’s  reason  for  seeking  the discharge without conviction was the possible effect on his career prospects as an accountant, a theft conviction warranted particular consideration.  I therefore turn to consider the matter afresh.

The gravity of the offence

[6]      Mr  Singh  provided  an  affidavit  explaining  the  circumstances  of  the offending.   He was on holiday in Queenstown with friends.   At the end of the evening’s drinking at a restaurant they decided to take jackets that were hanging on a

rack in the restaurant.  In the end the jackets were returned when the restaurant called the Police.  At least one of the co-offenders was offered diversion (the outcome of the other is unknown).  Mr Singh was not eligible for diversion because the offence occurred while he was on bail for the breach of protection order and assault charges.

[7]      Mr Clee, for Mr Singh, submitted that the true character of the offending could  be  judged  from  the  fact  that  the  Police  had  regarded  diversion  as  an appropriate response for the co-offender.    Mr Regan, for the respondent, acknowledged that the offence was not a serious one.

[8]      I agree that, in isolation, the circumstances of the theft itself could not be regarded as serious offending.   However, the fact that the offence was committed while Mr Singh was on bail for other, offences, means that it could not be regarded as being at the lowest level in terms of culpability.

Would the consequences of the conviction be out of all proportion to the gravity of the offence?

[9]       Mr Singh is 25 years old and holds a Bachelor of Business Administration. He has some work experience and hopes to obtain further experience and, ultimately, apply to become a chartered accountant.  He fears that a theft conviction will result in a real and appreciable risk of any such application being rejected.

[10]     Mr Singh has supplied a letter from the New Zealand Institute of Chartered Accountants (NZICA) advising of its general approach to applicants with criminal convictions. The letter advises, amongst other things:

… NZICA therefore seeks members who possess the attributes of honesty,

integrity and objectivity appropriate for the professional position they hold.

…

A conviction or offence will not automatically result in a “declined” application.  A range of factors are taken into account when considering the suitability of an applicant for membership who holds a conviction, for example:

The nature of the crime or offence and relevance to behavioural and attitudinal qualities expected of a member of the profession;

The extent of any adverse impact on NZICA’s membership brand;    Repetition of the offending or evidence of a disregard for the law;    The penalty imposed by the court;

The amount of money involved, if any;

The age of the applicant at the time of the offence;

The period of time over which the offence took place;    The time that has elapsed since the offence took place;

The extent to which, if at all, others have suffered as a result of the wrongdoing;

The likely level of culpability of the applicant;

The   level   of   the   applicant’s   contrition   and,   if   appropriate,

rehabilitation since the offence;

The likelihood of the applicant re-offending.

[11]     Mr Clee acknowledged that the convictions for breaches of a protection order and assault stand and that Mr Singh would need to declare those and allow the NZICA to consider his application with the benefit of that knowledge.  However, he submitted that the theft charge fell into a different category.   He emphasised the requirement for “honesty” as an attribute of any member of the NZICA and pointed out that a theft charge was inconsistent with that and for that reason alone there existed a real and appreciable risk that the conviction would preclude Mr Singh becoming a member of the Institute.

[12]     It is clear that Mr Singh’s application will be one that will fall to be carefully considered by the NZICA because of the convictions for breaches of a protection order and assault.  However, it is also evident from the NZICA’s letter 26 July 2012 that  the  Institute  will  carefully  consider  the  circumstances  of  the  offences  and Mr Singh will be able to fully explain those circumstances.  If required to declare the theft conviction Mr Singh will be able to point to the fact that his co-offender was treated by way of diversion, an indication that the offence was not, in itself, a serious one.  Further, Mr Singh will be able to show that he has completed the community work sentence imposed and that he is remorseful.   These are significant facts in

Mr Singh’s  favour  and  it  is  by no  means  certain  that  his  application  would  be

rejected.

[13]     There is another consideration; the NZICA is a statutory body charged with controlling those licensed to practice as chartered accountants.   Caution is needed when making a decision that would effectively deprive such a body of information that would be highly relevant to its determination.4

[14]     I  am  not  satisfied  that  there  is  a  real  and  appreciable  risk  that  the consequences of disclosing the theft conviction would be out of all proportion to the

conviction. The appeal is therefore dismissed.

P Courtney J

4 See e.g. Morgan v Police HC Auckland CRI 2009-404-212 8 October 2009; Moorhead v Police HC Napier 2010-441-25 August 2010