Singh v R
[2019] NZCA 436
•17 September 2019 at 1.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA101/2019 [2019] NZCA 436 |
| BETWEEN | ROHIT DEEPAK SINGH |
| AND | THE QUEEN |
| Hearing: | 31 July 2019 |
Court: | Miller, Peters and Woolford JJ |
Counsel: | M W Ryan for Appellant |
Judgment: | 17 September 2019 at 1.00 pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Peters J)
Mr Singh was convicted of the murder of Ms Arishma Chand following a jury trial before Powell J in October and November 2018. On 14 February 2019, the Judge sentenced Mr Singh to life imprisonment with a minimum period of imprisonment (MPI) of 19 years.[1] The sole issue on appeal is whether an MPI of 19 years was manifestly excessive. Mr Ryan, for Mr Singh, submits that it was and that no more than 17 years was required.[2]
Facts
[1]R v Singh [2019] NZHC 148.
[2]Mr Singh abandoned his appeal against conviction.
Ms Chand and Mr Singh had previously been in a relationship which she ended in August 2016. Thereafter, Mr Singh developed what the Judge described as “an ongoing obsession” with Ms Chand that evidenced itself in various ways, such as stalking her and sending her numerous messages.[3]
[3]R v Singh, above n 1, at [9].
The Judge was satisfied that Mr Singh had decided to kill Ms Chand by 10 November 2017. Instead of going to work that day, Mr Singh drove to Ms Chand’s address in a borrowed car and with a large knife. The Judge was satisfied that, but for the presence of Ms Chand’s family, Mr Singh would have killed Ms Chand that day. Mr Singh returned in another borrowed car on 11 November 2017 and waited outside for much of the day. He returned later that evening in his own vehicle, with gloves, a large knife and a second, unidentified, weapon.
Ms Chand eventually returned home with her boyfriend. He left at 12.45 am on 12 November 2017. Ms Chand telephoned her parents at about 12.50 am who said they would be home in 10 to 15 minutes.
Mr Singh entered the house shortly after that telephone call and attacked Ms Chand in her bedroom, inflicting 20 wounds in what the Judge described as a “frenzied attack”.[4] One particular wound caused Ms Chand to bleed to death. It was apparent from other wounds that Ms Chand had attempted to resist the assault, and she also scratched Mr Singh’s face. While Ms Chand was on her hands and knees, Mr Singh struck her at least eight times with the second weapon, fracturing her skull.
[4]At [19].
Mr Singh took steps to conceal his involvement after leaving the scene by disposing of the gloves, his clothes, the weapons, and the backpack in which he had carried them. Mr Singh rang the police shortly after 2 am, alleging that he had been assaulted by three girls who had scratched him on the face whilst he was on his way to visit relatives. Mr Singh’s relatives and cell phone polling data contradicted this account at trial.
Mr Singh’s explanation at trial for the presence of his DNA at the scene was wholly implausible, involving as it did a pre-arranged meeting with Ms Chand after her boyfriend had left, only to discover that she had been attacked.
Sentencing
In sentencing Mr Singh, the Judge first identified the relevant purposes and principles of sentencing, these being to hold Mr Singh to account for the harm he had caused; denunciation; personal and general deterrence; protection of the community; the seriousness of the offending; and consistency with the Court’s treatment of others guilty of similar offending.[5]
[5]Sentencing Act 2002, ss 7–8.
Next, the Judge identified three features of the offending which brought the case within s 104 of the Sentencing Act 2002. Absent manifest injustice, s 104 requires the Court to impose an MPI of at least 17 years for a murder committed in particular circumstances or exhibiting certain features.
Thirdly, the Judge considered, and trial counsel for Mr Singh appears to have accepted, that Mr Singh’s conduct after the offending was an aggravating factor. This conduct comprised leaving Ms Chand in a pool of blood, knowing her parents would find her within a matter of minutes; Mr Singh’s attempts to conceal his involvement including his false complaint of assault to the police; and the evidence he gave at trial to the effect that he and Ms Chand had reconciled. Ms Hoskin, Crown counsel, accepted on appeal that Mr Singh’s evidence at trial could not constitute an aggravating factor.
Fourthly, there were no mitigating circumstances.
Fifthly, having regard to other authorities and all of the above, the Judge considered an MPI of 19 years warranted.
Relevant statutory provisions
Absent manifest injustice, an offender convicted of murder must be sentenced to life imprisonment and an MPI imposed.[6] The MPI must be at least 10 years;[7] it must be the minimum term necessary to satisfy one or more of the purposes and principles of sentencing identified by s 103(2); and, as we have said, it must be at least 17 years for a murder committed in one or more of the circumstances listed in s 104.
[6]Sentencing Act, ss 102(1) and 103.
[7]Section 103(2).
Mr Singh’s murder of Ms Chand engaged s 104 in three distinct respects. It involved calculated or lengthy planning; the unlawful entry into a dwelling place; and it was committed with a high level of brutality and/or callousness (see ss 104(1)(b), (c) and (e)). Hence the lack of dispute on appeal that Mr Singh’s MPI was required to be at least 17 years.
The length of the MPI for a murder engaging s 104 is to be determined as follows. The first step is to consider the degree of culpability of the instant case in relation to that involved in the ‘standard range of murders’. In doing so, the Court is to take into account the pertinent aggravating factors in s 104 and any other applicable aggravating factors, and all factors in mitigation. The Court should also have regard to the policy of s 104, that is that the presence of one or more of the s 104 factors establishes that the murder is sufficiently serious to justify an MPI of at least 17 years. The next step is to decide what MPI is justified in all the circumstances of the case. If the appropriate MPI is 17 years or more, then the MPI imposed must reflect that assessment. If not, the Court is to consider whether it would be manifestly unjust to impose an MPI of 17 years.[8]
Submissions
[8]R v Williams [2005] 2 NZLR 506 (CA) at [52]–[54]. See also Davis v R [2019] NZCA 40.
Mr Ryan submits that the Judge erred in treating Mr Singh’s conduct after he had killed Ms Chand as a separate aggravating factor. Mr Ryan submits s 104(1) does not make provision for consideration of any other aggravating features. He submits that conduct after the event may bring a case within s 104(1)(e), but is otherwise irrelevant to determining the MPI. Approached correctly, and having regard to other cases, Mr Ryan submits that the MPI should be 17 years.
Ms Hoskin submits that the Court may consider all aggravating features of offending when fixing the MPI under s 103, that the Judge did not err in his treatment of Mr Singh’s conduct after the offending, and that the MPI of 19 years is not manifestly excessive having regard to other authorities.
Discussion
We do not accept Mr Ryan’s submission that Mr Singh’s conduct after the event could only be relevant if it served to render his offending sufficiently brutal or cruel or callous to bring it within s 104(1)(e).[9] It may be relevant to this, but it may also be relevant as another “applicable aggravating factor”.[10] In R v Williams, this Court said the correct approach in setting an MPI is to take account of the relevant s 104 factors, “other applicable aggravating factors”, and all mitigating factors.[11] Mr Singh’s conduct after Ms Chand’s death is another applicable aggravating factor.Thurgood v R, referred to below, illustrates this.[12]
[9]Counsel referring to this Court’s statements in R v Frost [2008] NZCA 406 at [26]–[27] and [35]–[40].
[10]R v Williams, above n 8, at [52].
[11]At [52].
[12]Thurgood v R [2012] NZCA 23.
However, even if we were to disregard Mr Singh’s actions after the offending, the 19‑year MPI would not be manifestly excessive. The Court has adopted a 19-year MPI in several other cases in which a defendant has murdered his estranged partner in circumstances similar to those present in this case.
Mr Ryan particularly referred us to R v Cui.[13] Mr Cui’s offending engaged at least three, and possibly four, s 104 factors. Moreover, Mr Cui was for sentence on a double homicide and a charge of attempted murder. The sentencing Judge imposed a 19-year MPI, which this Court upheld. Mr Ryan submitted that it was difficult to reconcile the 19‑year MPI imposed in that case with the present. It may appear difficult to reconcile at first glance but it must be borne in mind that Mr Cui was only 22 years of age at the time of the offending; the sentencing Judge took his relative youth into account; the case was a relatively early one under s 104; and, in addition, this Court described the sentence as “lenient”.[14]
[13]R v Cui CA333/05, 28 September 2006.
[14]At [120].
We have considered the other cases to which counsel referred us, including Preston v R which Powell J considered the most relevant.[15]
[15]Preston v R [2016] NZCA 568, [2017] 2 NZLR 358.
In Thurgood v R, this Court upheld an MPI of 19 years.[16] Of this, 18 years and six months was attributable to Mr Thurgood’s murder of his estranged partner, in circumstances which engaged the same s 104 factors as in this case. The other six months derived from Mr Thurgood’s conviction for attempting to pervert the course of justice by attempting to implicate a relative in his partner’s death, similar to Mr Singh’s attempts to divert suspicion in the present case.
[16]Thurgood v R, above n 12.
In Dawood v R, Mr Dawood planned his wife’s murder in detail and then killed her with a very high level of brutality and callousness.[17] He also attacked his eldest daughter when she sought to intervene. The Judge adopted a ‘starting point’ for the MPI of 19 years.
[17]Dawood v R [2013] NZCA 381.
In Preston v R, Mr Preston’s relationship with his partner, Ms Fan, had ended.[18] Shortly before her death, Ms Fan told Mr Preston she wanted nothing more to do with him. Mr Preston abducted and killed her in a highly brutal and callous manner. Mr Preston also took steps to seek to conceal his involvement in the killing, ‘staging’ a burglary of Ms Fan’s house as she was dying. The sentencing Judge imposed a 19‑year MPI, considering that the same s 104 factors were engaged as in this case. This Court upheld that MPI on appeal.[19]
[18]Preston v R, above n 15.
[19]At [167].
In Christison v R, Mr Christison and Ms Bower had separated after 23 years.[20] Mr Christison gave Ms Bower reason to be concerned for her safety. She sought help from the police, had Mr Christison trespassed from her house, obtained a protection order and took various other steps to ensure her safety. Mr Christison murdered Ms Bower in a “short but extremely violent attack”.[21] The same three s 104 factors were present as in this case. This Court said a starting point MPI of 18 to 20 years would not have been outside the proper range.[22]
[20]Christison v R [2017] NZCA 168.
[21]At [12].
[22]At [34].
It follows that the Judge’s MPI of 19 years was within range.
Result
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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