AAn extension of time to appeal is granted.
BThe appeal is allowed.
CThe sentence of two years and seven months imprisonment imposed in the District Court on the counts of theft of a motor vehicle and theft of property valued in excess of $1,000 are quashed and replaced with sentences of two years and four months. Those sentences are concurrent. All concurrent sentences for other offending and the cumulative sentence of two months imprisonment for driving while disqualified are confirmed. The end result is that the total term of imprisonment imposed on the appellant is reduced from two years and nine months to two years and six months.

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REASONS OF THE COURT

(Given by O’Regan P)

Introduction

Mr Singh pleaded guilty to eight charges[1] and was sentenced by Judge Moore to a total sentence of two years and nine months imprisonment. He now appeals against that sentence.[2]

Extension of time

[1] Detailed below at [4].

[2] R v Singh DC Auckland CRI-2009-004-23123, 6 August 2010.

The appeal was filed outside the time for appealing specified in s 388 of the Crimes Act 1961. However, counsel explained the reason for the delay and the Crown accepted that there had been no prejudice occasioned by the delay. In those circumstances we grant an extension of time to appeal.

Grounds of appeal

The appeal was advanced on two grounds, namely:
(a)the sentence was manifestly excessive because the Judge adopted too high a starting point, and gave too great an uplift for previous convictions;
(b)there was disparity between the sentence imposed on Mr Singh and that imposed on a co-offender, Mr Shannon.

The charges

The charges to which Mr Singh pleaded guilty, and the maximum penalties, were as follows:
(a)One count of unlawfully taking a motor vehicle (seven years imprisonment). This involved the theft of a Honda car valued at $15,000 from an Auckland parking building on 24 August 2009.
(b)Three counts of unlawfully getting into a motor vehicle (two years imprisonment). One of these counts related to another incident on 24 August 2009, when a Mazda vehicle was stolen from a parking building and Mr Singh and Mr Shannon were later seen in it. They drove it to another parking building where the theft of the Honda occurred. The other two counts related to incidents in which motor vehicles were stolen on 21 October 2008 and 7 March 2009 respectively.
(c)One count of theft of property valued between $500 and $1,000 (one year imprisonment). This also relates to an incident on 24 August 2009, when Mr Singh broke into a vehicle in a car park and stole a car stereo and a digital camera.
(d)One count of theft of property…

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 [2011] NZCA 139
Case: [2011] NZCA 139
Decision Date: 6 April 2011

CaseChat Overview and Summary

The case of Singh v R involved an appeal against the sentence imposed on Jason Singh, who had pleaded guilty to multiple charges including theft of motor vehicles and property, and driving while disqualified. The appeal was heard by O'Regan P, Winkelmann, and Chisholm JJ in the Court of Appeal of New Zealand. Singh's appeal was twofold: firstly, that the sentence was manifestly excessive due to the high starting point and excessive uplift for previous convictions, and secondly, that there was a disparity between the sentence imposed on Singh and that imposed on his co-offender, Mr Shannon. The court granted an extension of time for the appeal, accepted the reasons provided by counsel for the delay, and noted the Crown's lack of prejudice from the delay.

The court examined whether the starting point for sentencing was excessive, noting that the starting point of two and a half years for the most serious charges, while near the top of the available range, was not outside the range considering the nature of the offences and the number of offences committed. Regarding the uplift for previous convictions, the court found that while a nine-month uplift was high, it was not enough on its own to justify interference. However, the court recognised the possibility of double counting in both the starting point and the uplift for previous offending. The court also considered the disparity between Singh's sentence and that of Mr Shannon, concluding that the differences in their offending and previous records made it difficult to conclude that the disparity was unjustifiable or gross. The court found that while Judge Morris had treated Mr Shannon sympathetically, the disparity in sentencing was not unjustifiable given the additional offending for which Singh faced sentence and the length of time over which it occurred.

In conclusion, the Court of Appeal allowed the appeal and reduced Singh's sentence by three months to address the concern of double counting in the starting point and uplift for previous convictions. The reduced sentence meant that Singh's total term of imprisonment was two years and six months, down from two years and nine months. The court confirmed the concurrent sentences for other offences and the cumulative sentence for driving while disqualified.

Orders