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Singh v R

Singh v R

Case [2020] NZCA 211 4 June 2020

Appeal

Jurisdiction

Sentencing

Disparity in Sentencing

Retrospectivity of Guidelines

Personal Mitigating Circumstances

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA552/2019
[2020] NZCA 211

BETWEEN	SHANE SHABIR SINGH Appellant
AND	THE QUEEN Respondent

Hearing:	21 April 2020
Court:	Clifford, Gilbert and Collins JJ
Counsel:	N P Chisnall for the Appellant Z R Johnston for Respondent
Judgment:	4 June 2020 at 11 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is allowed.
CThe sentence of 10 years and four months’ imprisonment is set aside and substituted with a sentence of five years, seven months’ imprisonment.
DThe minimum period of imprisonment imposed of four years is set aside.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

Mr Singh, then aged 24, agreed to be the recipient at his home address of two packages sent from the United States containing methamphetamine. The first package arrived in early June 2017 and he delivered it to another co‑defendant. This package was later found to contain 886.9 grams of methamphetamine. In mid‑June 2017, the New Zealand Customs Service intercepted a significantly larger package that was also to be delivered to Mr Singh’s home address. This package contained 3.563 kilograms of methamphetamine. Mr Singh received $10,000 for agreeing to be the recipient of these packages. It is common ground he did not have any idea of the quantities of methamphetamine involved. Mr Singh pleaded guilty at an early stage to two charges of importing methamphetamine for his role in this offending. His co‑offenders did not plead guilty and proceeded to trial.
Mr Singh was sentenced by Lang J on 19 March 2019 to 10 years and four months’ imprisonment.[1] The Judge adopted a starting point of 14 years’ imprisonment in accordance with the then current guideline judgment of this Court in R v Fatu.[2] From this starting point, the Judge allowed three discounts — six months to reflect Mr Singh’s remorse, six months for his previous good character and a further 20 per cent (approximately two years and eight months’ imprisonment) for his guilty plea.[3] The Judge ordered Mr Singh to serve a minimum period of four years’ imprisonment.[4]
[1]R v Singh [2019] NZHC 498 [Sentencing judgment].
[2]At [11]–[14], referring to R v Fatu [2006] 2 NZLR 72 (CA).
[3]At [16]–[20].
[4]At [22].
At the time Mr Singh was sentenced, this Court was due to hear (in April 2019) several appeals for the purpose of reviewing the Fatu sentencing guidelines for offending involving methamphetamine. The senior lawyer employed by the Public Defence Service (the PDS) who was acting for Mr Singh was aware of this pending review, but she did not seek an adjournment because she understood the Judge, quite properly, would not agree to postpone the sentencing to await the outcome of the Fatu review.
Mr Singh told counsel he wished to appeal against his sentence. Counsel advised him that although the sentence was not manifestly excessive in terms of the Fatu guidelines, a notice of…

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 R

Details

AGLC: Singh v R [2020] NZCA 211
Case: [2020] NZCA 211
Decision Date: 4 June 2020 at 11 am

CaseChat Overview and Summary

In the case of Singh v R, the Court of Appeal of New Zealand heard an appeal against sentence and an application for an extension of time to appeal. Shane Shabir Singh, the appellant, had pleaded guilty to charges of importing methamphetamine, receiving packages containing the drug at his home address. He received a sentence of 10 years and four months’ imprisonment, with a minimum period of four years. Singh’s co-offenders were subsequently sentenced, with one, Toni Finau, receiving a sentence of eight years’ imprisonment with no minimum term. Singh sought to appeal his sentence out of time, arguing that the disparity in sentences was so significant that it demonstrated a failure in the administration of justice. The Crown did not oppose the extension of time and the appeal.

The Court of Appeal granted the extension of time and allowed the appeal, setting aside the sentence of 10 years and four months’ imprisonment and substituting it with a sentence of five years, seven months’ imprisonment. The Court also set aside the minimum period of imprisonment of four years. The Court held that the new guideline judgment in Zhang v R should be applied retrospectively to Singh’s appeal, as it would result in a more favourable outcome for him. The Court also found that the disparity in sentences between Singh and Finau was so great that a reasonably minded independent observer would be concerned that something had gone wrong with the administration of justice. The Court concluded that Singh and Finau were in materially the same position as "catchers" in the drug importation scheme, and a starting point of eight years’ imprisonment was appropriate for both of them. The Court further held that a minimum period of imprisonment was not required in Singh’s case, in accordance with the new guidelines in Zhang.

Orders