Singh v R - [2013] NZCA 245

IN THE COURT OF APPEAL OF NEW ZEALAND

CA78/2013
[2013] NZCA 245

BETWEEN	SARBJEET SINGH Appellant
AND	THE QUEEN Respondent

Hearing:	2 May 2013
Court:	Arnold, Chisholm and Keane JJ
Counsel:	N K McDonald for Appellant B D Tantrum & L M Mills for Respondent
Judgment:	20 June 2013 at 11 am

JUDGMENT OF THE COURT

The appeal against sentence is allowed, to the extent that the appellant’s sentence of seven months home detention is quashed. Otherwise, his sentence stands.

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REASONS OF THE COURT
(Given by Keane J)

On 18 January 2013, at the District Court, Manukau, Sarbjeet Singh was sentenced for four representative offences, involving the fraudulent use of documents between 1 January–4 July 2007, to seven months home detention and 100 hours community work and ordered to make $20,000 reparation.[1]
[1]R v Singh DC Manukau CRI-2011-092-12910, 18 January 2013.
This sentence was consistent with a sentence indication given to Mr Singh by the sentencing Judge, Judge B A Gibson, on 16 November 2012, before he pleaded on arraignment. Despite that he appeals his sentence as manifestly excessive on the ground of disparity.
On 20 June 2012, seven months before Mr Singh was sentenced, and five months before Judge Gibson gave the sentence indication he accepted, his co‑offender, John Kirikava, was sentenced to 150 hours community work for his part in this shared offending. On this appeal Mr Singh contends that his culpability was no greater and that his sentence should have been more nearly equivalent.
Mr Singh is only able to rely on disparity to contend that his sentence is manifestly excessive if he can establish that disparity to be so gross and unjustifiable as to suggest to an independent objective observer that the administration of justice has miscarried.[2]
[2]Macfarlane v R [2012] NZCA 317 at [24].
The sentence imposed on Mr Kirikava was, on its face, lenient and, as this Court has often said, an offender, whose sentence is proportionate to his or her offence, cannot anticipate having that sentence reduced because a co‑offender has been treated leniently. On this appeal Mr Singh also faces the still larger difficulty that his sentence was that indicated to him before he entered his plea.
On the hearing of the appeal, however, the possibility emerged that Judge Gibson’s sentencing indication might have rested on a mistaken premise: that Mr Kirikava’s sentence was in large part explained not just by his role in the offending and earlier plea, but by a significant discount for co-operating with the police. Our own review of the District Court record confirms that to have been so. On that basis alone we are obliged to revisit the sentence imposed.
Mr Singh has, furthermore, now paid in full the reparation ordered and in resolving this appeal, to bring about finality, we are invited to cancel that order.

Offences and offenders

Michael Tomlin, John Kirikava and Sarbjeet Singh worked together between 1 January–4 July 2007 at one or both of the two scrap metal yards…

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 [2013] NZCA 245
Case: [2013] NZCA 245
Decision Date: 20 June 2013 at 11 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Sarbjeet Singh appealed against his sentence for fraudulent use of documents. The appeal was heard by Arnold, Chisholm, and Keane JJ, with the judgment delivered by Keane J on 20 June 2013. Singh was sentenced to seven months home detention, 100 hours of community work, and ordered to make $20,000 in reparation. The key issue in the appeal was whether the sentence was manifestly excessive due to its disparity with the sentence of his co-offender, John Kirikava, who received a lighter sentence of 150 hours of community work. Singh argued that his culpability was no greater than Kirikava's, and therefore, his sentence should have been more nearly equivalent.

The Court found that the sentencing judge had made an error in assuming that Kirikava's sentence was significantly discounted for cooperating with the police, when in fact, it was because the judge found Kirikava to be the least culpable of the three offenders. Upon reviewing the sentencing record, the Court concluded that Kirikava's sentence was lenient and that the disparity between Singh's and Kirikava's sentences was so gross that it suggested a miscarriage of justice in Singh's case. The Court quashed Singh's seven months home detention sentence and confirmed his 100 hours of community work and the completion of reparation.

Orders