Singh v R
[2016] NZCA 582
•8 December 2016 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA224/2016 [2016] NZCA 582 |
| BETWEEN | RAJESHWAR SINGH |
| AND | THE QUEEN |
| Hearing: | 7 November 2016 |
Court: | Asher, Woodhouse and Ellis JJ |
Counsel: | C J Tennet for Appellant |
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, in sentencing for murder, the Court must, unless it is satisfied that it would be manifestly unjust to do so, make an order imposing an MPI of at least 17 years in a number of defined circumstances, including where:
(a)the murder involved calculated or lengthy planning; or
(b)the murder involved the unlawful entry into, or unlawful presence in, a dwelling place; or
(c)the murder was committed with a high level of brutality, cruelty, depravity, or callousness; or
(d)the deceased was particularly vulnerable because of his or her age, health, or because of any other factor.
This Court held in R v Williams that an assessment of culpability when determining the MPI in a case where s 104 is engaged requires a two-step approach.[2]
[2]R v Williams [2005] 2 NZLR 506 (CA) at [52]–[54].
First, there must be an orthodox assessment of culpability by applying s 103. As well as imposing the minimum term of 10 years’ imprisonment for all murders, s 103(2) requires that the Court impose a minimum term that holds the offender accountable, denounces the offending, deters the offender and protects the community.
In order to determine culpability, the Court is to take into account in the normal way the relevant aggravating factors, including those set out in s 104(1), as well as any mitigating factors. The Court should recognise that any of the aggravating factors that are specifically referred to in s 104 are to be regarded as particularly serious. That is because the legislative policy underlying s 104 is that the Courts are at times required to impose higher minimum terms of imprisonment than they might have done had the section not been enacted.[3] Where this first step indicates that a minimum term of 17 years or more is appropriate, the minimum term must reflect that assessment, subject to any manifest injustice.[4]
[3]At [52].
[4]At [54].
The second step is only taken if the first step indicates that the appropriate MPI is less than 17 years, notwithstanding the presence of one or more s 104 factors. Then the sentencing Judge must consider whether it would be manifestly unjust to impose a minimum term of 17 years.[5]
[5]At [54].
The following additional points were noted by the Court in Williams:
(a)where s 104 factors exist, the specified minimum period may not be departed from lightly, as the Court is bound to give effect to the legislative policy of ensuring a 17-year minimum for the most serious murder cases. The reasons for departure must withstand scrutiny;[6]
(b)the presence of mitigating factors under s 9(2) of the SA which relate to the personal circumstances of an offender will rarely displace the presumption. Powerful mitigating circumstances bearing on the offence are more likely to do so;[7] and
(c)examples of where the 17-year minimum term may be manifestly unjust are where:[8]
(i)the s 104 qualifying factor has only peripheral significance; or
(ii)the culpability of the particular offending is relatively low by comparison with the range of cases caught by s 104, and the mitigating personal circumstances of the offender are powerful.
[6]At [66].
[7]At [66].
[8]At [68].
In the present context, a useful example of s 104 “in action” is Dawood v R, where the offender suffered from depression, morbid jealousy and cultural dislocation.[9] The High Court considered that a five per cent discount for mental illness would ordinarily be appropriate, which would have yielded a nominal MPI of 16 years and three months. But the Court nonetheless found it was not manifestly unjust to impose an MPI of 17 years. That approach was upheld on appeal.
Mr Singh’s guilty plea and sentencing
[9]Dawood v R [2013] NZCA 381.
On 20 March 2014 Ronald Young J found that Mr Singh was fit to stand trial.[10] That finding was based on reports prepared by two psychiatrists (Dr Heads and Dr Darling) pursuant to s 38(1)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2001. Dr Heads’ report noted that:
(a)during the period leading up to his wife’s death Mr Singh had experienced a number of serious stressors including his son’s death and his wife’s illness (she had had breast cancer);
(b)after he had been required to move out of the house he was “upset, distressed and ruminating” about his wife and the marriage;
(c)he had given a “highly unusual” account of the circumstances leading up to the killing, involving being possessed by a ghost or spirit and had said that his wife had been stabbed by accident;
(d)his account was not consistent with symptoms of mental illness nor with his suicide notes and (in Dr Heads’ view) most likely reflected his difficulties in coming to terms with what had happened;
(e)immediately after the killing he was assessed as having had a depressive episode and being at high risk of suicide, but was not psychotic;
(f)he had been experiencing “significant anxiety, distress and low mood” in the context of his separation from his wife and had made an extremely serious attempt to kill himself;
(g)he would continue to need support from health services in prison due to his distress and risk of self-harm; and
(h)he was not legally insane at the time of the killing and was fit to stand trial.
[10]R v S [2014] NZHC 525.
On 9 April 2014, Ronald Young J gave Mr Singh a sentence indication.[11] He noted that “at least” two s 104 factors were present.[12] He said purchasing the knife and the rope and writing the notes indicated premeditation and the killing involved a home invasion. He also noted that there were elements of brutality and vulnerability present but not to the extent that the s 104 threshold would independently have been met on those bases.
[11]R v Singh [2014] NZHC 753.
[12]At [10].
Taking into account the two triggering factors, and the breach of protection order and bail as aggravating features, Ronald Young J arrived at a nominal 18-year MPI. In doing so he rejected the contention that Mr Singh’s mental health justified a deduction. He said that although Mr Singh was suffering from depression, his condition did not reduce his culpability or mean that imprisonment would be particularly onerous for him. He did however indicate that he would discount the 18 years by two years for an early guilty plea. Accordingly, the sentence indication was life imprisonment with an MPI of 16 years.[13]
[13]It is implicit rather than explicit in the Judge’s decision that he considered that it would be manifestly unjust to then revert to a 17-year MPI.
Mr Singh then pleaded guilty. He was sentenced on 5 June 2014. By then the Judge had before him a pre-sentence report and an updating report from Dr Heads. The reports noted that Mr Singh was now evidencing some feelings of remorse. Dr Heads repeated many of her earlier observations but noted that Mr Singh’s mental state had improved since her earlier assessment, due to antidepressant and antipsychotic medication and the support from mental health services that he had received. She expressed the view that he would need both the medication and support to continue for a significant further period.
In his sentencing notes the Judge dealt with those matters as follows:[14]
[14] The other factor your counsel says should reduce your responsibility for this murder are the reports obtained by a psychologist and psychiatrists. I have all of those reports including the most recent updated reports. The most recent report notes that your current mental health has improved from the time of the killing.
[15] The report says that you feel remorse about the killing. It confirms that at the time of the offending you were anxious, distressed, low in mood and depressed. You acknowledge though in that report that you were angry at your wife who had left you and who had obtained the protection order. I accept the most recent reports, particularly, do illustrate perhaps the beginning of a realisation of what you have done but I do not accept that the remorse expressed in the most recent report is of a nature that would justify a reduction in sentence.
[16] Nor do I consider that these reports reduce your responsibility such that a lower starting minimum sentence would be justified. I accept that you were deeply affected by the death of your child. But ultimately it seems to me that it was your attitude to your wife that drove this killing. You simply could not accept that she had the right to decide not to be with you.
[14]R v Singh, above n 1.
The Judge then sentenced Mr Singh in accordance with his earlier indication.[15]
Mr Singh’s appeal
The grounds of appeal advanced on Mr Singh’s behalf are that the 18-year “starting point” was excessive and wrong and the 16-year “end point” was, as a result, and by reference to other cases, excessive and wrong.[16] Mr Tennet’s written and oral submissions developed these points further. More specifically he contended that:
(a)the Judge was wrong to regard premeditation as an actuating s 104 factor;
(b)the Judge was wrong to regard the breaches of the protection order and of bail as separate aggravating features; and
(c)the Judge was wrong in refusing to take account of Mr Singh’s mitigating personal circumstances, namely his depression and anxiety at the time of the murder.
Discussion
[15]Concurrent three-month sentences were imposed for two breaches of the protection order.
[16]The terms “starting point” and “end point” are not particularly apt in the context of a Williams analysis.
We consider that the Judge’s assessment of Mr Singh’s culpability appropriately identified the relevant aggravating features of this murder, namely the specific s 104 factors that were engaged as well as the breaches of the protection order and bail conditions.
As regards the specific s 104 matters, we do not accept Mr Tennet’s submission that premeditation was present only in a peripheral way. While there was no evidence of lengthy planning there was certainly a degree of calculation involved. Mr Singh undoubtedly formed his plan much earlier in the day, then took a number of active steps to bring it to fruition. As well as purchasing the murder weapon and the rope, he deliberately waited until the middle of the night to execute his plan. He wrote two notes explaining in advance what he proposed to do. And he later acted in accordance with his written intentions.
If anything, we would be inclined to place more weight than did the Judge on Mrs Singh’s vulnerability; she was clearly terrified of what her husband might do. She did all she could to stop him. It was, as we have said, no accident that he waited until she was likely to have been alone, in bed and asleep before breaking into the house and attacking her.
Nor are we able to accept the proposition that the breaches of the protection order and bail conditions were not separately aggravating because they were inherent in the home invasion. Despite the absence of any express mention of such matters in s 104, we consider that the murder of a protected person by the person against whom a protection order has been made is particularly exacerbating. Where a defendant has deliberately and fatally flouted Court orders made specifically to protect the victim from him or her, there is a particular need for strong messages of denunciation and deterrence.
In terms of mitigating factors, no issue was taken by Mr Tennet with the extent of the Judge’s recognition of Mr Singh’s guilty plea as a mitigating factor. We agree it was appropriate. As we have said, this part of Mr Tennet’s argument was, instead, focussed on Mr Singh’s mental health. He relied, in particular, on the principles enunciated by this Court in E (CA689/10) v R which, he suggested, were at odds with the Court’s decision in Hamidzadeh v R.[17] He invited us to resolve the inconsistency in Mr Singh’s favour.
[17]E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411; Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369.
Hamidzadeh involved sentencing for a murder not dissimilar to the present. This Court allowed the Solicitor-General’s appeal against sentence on the grounds that the sentencing Judge had been wrong to find that an otherwise warranted 17‑year MPI would be manifestly unjust on the grounds of provocation and personal circumstances (including Mr Hamidzadeh’s mental health). Hamidzadeh thus involves an orthodox application of the approach mandated in Williams.
By contrast, the decision in E (CA689/10) was concerned with a sentence for manslaughter. There was therefore no mandatory life sentence and neither s 103 nor s 104 were in play. So it was in that, materially different, context that the Court confirmed that impaired mental functioning could be relevant to sentencing in at least six ways, namely:[18]
(a)The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
(b)The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
(c)Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
(d)Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
(e)The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
(f)Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
[18]At [70], citing R v Verdins [2007] VSCA 102, (2007) 16 VR 269 at [32].
In the present case, the reality is that Ronald Young J did not consider that Mr Singh’s mental state was such that any of the six considerations listed in E (CA689/10) were activated, at least in a s 104 context.[19] That was precisely the same conclusion reached by the Court of Appeal in Hamidzadeh in, as we have said, not dissimilar circumstances.[20]
[19]The default sentence of life imprisonment renders the second and sixth matters largely irrelevant when sentencing for murder.
[20]Hamidzadeh v R, above n 17, at [84].
Importantly, Mr Tennet did not identify which of the six matters were particularly relied upon on behalf of Mr Singh, or any specific evidentiary basis upon which such reliance might be based. On our reading of the psychiatrists’ reports there is nothing to suggest that Mr Singh’s moral culpability could be viewed as materially reduced by his depression and anxiety. Nor can the severity or nature of his symptoms be said to be such that the need either specifically or generally to deter intimate partner killings of this kind can properly be seen as diminished. And lastly, there is nothing in the reports to suggest that a 16-year MPI will weigh more heavily upon Mr Singh than it might on others. On the contrary, it appears that he is doing well in prison, and his mental state is improving, due to the care he is receiving.
There is, therefore, no basis for concluding that there is any inconsistency between E (CA689/10) and Hamidzadeh. At least some of the six considerations listed in E (CA689/10) can be taken into account in a s 104 sentencing, provided a relevant impairment exists and it is relevant to an identifiable sentencing principle. But a defendant in a s 104 case will always be confronted, (as Mr Hamidzadeh was, and as Mr Singh now is) by the dicta from Williams that such mitigating personal factors must be particularly powerful to carry much weight.[21]
Conclusion
[21]R v Williams, above n 2, at [66].
None of the grounds of appeal are made out. It cannot be said that the 16‑year MPI was manifestly excessive. Accordingly:
(a)an extension of time to appeal is granted; but
(b)Mr Singh’s appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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