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Singh v Police

Singh v Police

Case [2024] NZHC 1797 4 July 2024

Unconscionable Conduct

Criminal Law

Immigration & Refugee Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-106

[2024] NZHC 1797

BETWEEN
AGYAPAL SINGH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 21 May 2024

Appearances:

J J Rhodes for Appellant

L S Seybold for Respondent

Judgment:

4 July 2024

JUDGMENT OF BOLDT J

[Appeal against conviction and sentence]

This judgment was delivered by me on 2024 at am/pm

Registrar/Deputy Registrar

Solicitors:
Meredith Connell, Auckland for Respondent

SINGH v NEW ZEALAND POLICE [2024] NZHC 1797 [4 July 2024]

Introduction

[1] On 7 March 2024, the appellant, Mr Agyapal Singh, appeared for sentence after pleading guilty to two charges of driving with excess breath or blood alcohol and one of driving at a dangerous speed.

[2] Mr Singh unsuccessfully sought a discharge without conviction pursuant to s 106 of the Sentencing Act 2002. Judge N Mathers convicted Mr Singh and sentenced him to 120 hours of community work, 12 months’ supervision, disqualification from driving for six months (backdated by six months in recognition of his need to drive as part of his employment) and an alcohol interlock sentence lasting 12 months.1 On 25 March 2024, Judge Mathers delivered her reasons for refusing the discharge without conviction.2 Mr Singh appeals against that refusal.

[3] Mr Singh is an Indian national. He has been living in New Zealand since 2013 and is in the process of seeking a resident visa. His principal submission is that convictions on the three charges may result in his failing to meet the good character requirements of his existing visa and the resident visa he hopes to obtain. He argues that if his convictions stand, he is unlikely to be able to remain in New Zealand and will be forced to return to India, with serious adverse consequences both for him and his young family. He argues this indirect consequence of conviction will be out of all proportion to the gravity of his offending.

Background

[4] Mr Singh’s offending dates back to 2020 and 2021.3 On 14 November 2020, he was driving in Manurewa. His driving caught the attention of Police, and he was pulled over. Mr Singh was found to have a blood alcohol level of 219 mg of alcohol per 100 ml of blood, more than four times the legal limit.

1      Police v Singh [2024] NZDC 5521 [Sentencing decision]. The Judge also backdated the commencement of the alcohol interlock sentence by 28 days, allowing the appellant to drive immediately.
2      Police v Singh [2024] NZDC 6413 [Discharge decision].
3      Mr Singh did not plead guilty immediately, though much of the delay was also attributable to adjournments necessitated by the pandemic.

[5] Two months later, Police observed Mr Singh driving at 95 kph through a 50 kph zone in Thames. He was breath tested and produced a result of 1080 mcg of alcohol per litre of breath, once again more than four times the legal limit.

[6] Mr Singh was not a first offender. In 2019…

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 [2024] NZHC 1797
Case: [2024] NZHC 1797
Decision Date: 4 July 2024

CaseChat Overview and Summary

In Singh v Police, the High Court was asked to determine whether the District Court had erred in refusing Mr Agyapal Singh’s application for a discharge without conviction for three charges of driving with excess blood or breath alcohol and one of driving at a dangerous speed. The District Court had convicted Mr Singh and sentenced him to 120 hours of community work, 12 months’ supervision, a six-month disqualification from driving (backdated by six months), and an alcohol interlock sentence lasting 12 months. Mr Singh appealed the District Court’s refusal to grant a discharge without conviction on the basis that the consequences of his convictions could result in his deportation and separation from his family, which he argued would be out of all proportion to the gravity of his offending. The court was required to decide whether the District Court had made an error in its assessment of the gravity of Mr Singh’s offending, and whether the consequences of his convictions were out of all proportion to the gravity of his offending.

The court found that the District Court had not erred in its assessment of the gravity of Mr Singh’s offending, noting that his intoxication levels were extreme and that the offending posed a grave danger to the public. The court further found that while deportation was a real possibility for Mr Singh, the entry of a conviction would be of limited relevance to Immigration New Zealand’s (INZ) assessment of his character. The court concluded that the consequences of a conviction would not be out of all proportion to the gravity of Mr Singh’s offending, and dismissed the appeal.

The final orders of the court were that the appeal be dismissed, and that Mr Singh remain convicted and sentenced as per the District Court’s decision.

Orders