Singh v R - [2016] NZCA 582

IN THE COURT OF APPEAL OF NEW ZEALAND

CA224/2016
[2016] NZCA 582

BETWEEN	RAJESHWAR SINGH Appellant
AND	THE QUEEN Respondent

Hearing:	7 November 2016
Court:	Asher, Woodhouse and Ellis JJ
Counsel:	C J Tennet for Appellant I R Murray for Respondent
Judgment:	8 December 2016 at 11.30 am

JUDGMENT OF THE COURT

A An extension of time to appeal is granted.

B The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

Following his conviction for the murder of his estranged wife Mr Singh was sentenced by Ronald Young J to life imprisonment with a minimum period of imprisonment (MPI) of 16 years.[1] That MPI reflected the Judge’s finding that s 104 of the Sentencing Act 2002 (the SA) was engaged in Mr Singh’s case.
[1]R v Singh [2014] NZHC 1246.
Mr Singh now appeals against the 16-year MPI. His appeal is out of time but the Crown does not oppose an extension.

Facts

Mr Singh and Mrs Singh married in Fiji in 1991. They moved to Australia and then New Zealand. They had a son who had muscular dystrophy and died in 2011. The marriage was violent and in 2008 Mrs Singh obtained a protection order against her husband, although they continued to live together.
Late in the evening of 27/28 October 2013 Mr Singh made 38 abusive and threatening phone calls to his wife. As a result he was charged with breaching the protection order. One of his bail conditions was that he not contact his wife. Mr Singh then moved out of the family home.
On 6 November Mrs Singh had the front door and garage locks changed. She added a bolt lock to the inside of her bedroom door. Each night she positioned chairs and vases on the inside of various doors to alert her if anyone entered. She slept with a knife under her pillow and a meat cleaver beneath her bed. Between 8 and 25 November Mr Singh breached the protection order many times by parking outside her place of employment and driving past and parking nearby her home. Mrs Singh told a friend that her husband had been following her and was afraid that he would kill her.
On 25 November Mr Singh bought a knife and a rope in order that he could kill Mrs Singh himself. He arrived at his wife’s house just after midnight. He had written two suicide notes in which he also confessed in advance to his wife’s murder. One was dated 26 November. He smashed his way into the bedroom and stabbed Mrs Singh to death. Mr Singh then hanged himself in the garage. Just before Mrs Singh was attacked, she had managed to call emergency services. The police arrived too late to save her but cut Mr Singh down after which he regained consciousness.

Section 104

It is useful at the outset to reiterate the mandated approach in sentencing for murder where s 104 is in play.
Section 104 requires that,…

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 [2016] NZCA 582
Case: [2016] NZCA 582
Decision Date: 8 December 2016 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Singh v R was heard, where the appellant, Rajeshwar Singh, appealed against his conviction for the murder of his estranged wife. Singh was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 16 years, as the sentencing judge found that section 104 of the Sentencing Act 2002 applied. Singh appealed against the 16-year MPI, arguing that it was excessive. The Crown did not oppose an extension of time to appeal.

The legal issues the court had to decide were whether the sentencing judge was correct in considering premeditation as an actuating section 104 factor, whether the breaches of the protection order and bail conditions were separate aggravating features, and whether the judge was wrong in not taking into account Singh's mitigating personal circumstances, namely his depression and anxiety at the time of the murder.

The court found that the sentencing judge's assessment of Singh's culpability was appropriate, identifying the relevant aggravating features of the murder, including the specific section 104 factors that were engaged as well as the breaches of the protection order and bail conditions. The court also found that there was a degree of calculation involved in Singh's actions, and that the murder of a protected person by the person against whom a protection order has been made is particularly exacerbating. Regarding mitigating factors, the court agreed that the judge's recognition of Singh's guilty plea as a mitigating factor was appropriate. The court found that there was no inconsistency between the principles enunciated in E (CA689/10) v R and Hamidzadeh v R, and that at least some of the six considerations listed in E (CA689/10) could be taken into account in a section 104 sentencing, provided a relevant impairment exists and it is relevant to an identifiable sentencing principle.

As a result, the court dismissed Singh's appeal and granted an extension of time to appeal. The 16-year MPI was not found to be manifestly excessive, and therefore the appeal was dismissed.

Orders