Singh v R
[2011] NZCA 139
•6 April 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA41/2011 [2011] NZCA 139 |
| BETWEEN JASON SINGH |
| AND THE QUEEN |
| Hearing: 22 February 2011 |
| Court: O'Regan P, Winkelmann and Chisholm JJ |
| Counsel: M Hislop for Appellant |
| Judgment: 6 April 2011 at 2.30 pm |
JUDGMENT OF THE COURT
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 in excess of $1,000 (seven years imprisonment). In this instance, Mr Singh stole a security camera valued at $2,500 from a car park after he realised the camera was filming him while he tried to take coins out of a pay machine.
(e)One count of theft from a shop (under $500) (three months imprisonment). This related to the theft of a bottle of “Bio Oil” and a wallet from a Farmers store.
(f)One count of driving while disqualified (third or subsequent offence) (two years imprisonment). The appellant was stopped for this offence on 2 January 2009. It was apparently his sixth conviction for the offence. His most recent conviction for this offence had occurred only three weeks before this incident.
District Court sentencing
The District Court Judge set a starting point for the most serious charges, taking into account the totality of all of the dishonesty offending, of two and a half years imprisonment. He then considered the uplift for Mr Singh’s appalling prior history of offending, which included 50 previous convictions for dishonesty, 41 of which related to motor vehicles. The Judge noted that there were 14 further convictions relating to driving offences and 15 for breaching sentences or bail or prohibitions.
The Judge added nine months for this factor. He then added a further three months for the driving while disqualified matter, giving a total adjusted starting point for all offences of three years and six months. He allowed a discount of 20 per cent for the appellant’s early guilty pleas (he described this as “a little generous”), giving a total end sentence of two years and nine months.
The sentence of two years and nine months imprisonment was made up of total concurrent sentences of two years and seven months imprisonment for all of the offences involving dishonesty and a cumulative sentence of two months imprisonment for driving while disqualified. The sentence of two years, seven months in relation to the dishonesty offences was divided as follows: two years, seven months imprisonment for unlawfully taking a motor vehicle and theft of more than $1,000, nine months imprisonment for all of the charges of unlawfully getting into a motor vehicle, and one month imprisonment for theft of between $500 and $1,000, and theft of under $500. All of those sentences were concurrent.
Was the sentence manifestly excessive?
As noted earlier, the argument under this head was divided into two aspects, namely whether the starting point was excessive and whether the uplift for previous offending was excessive. We will deal with those issues in the above order.
Was the starting point excessive?
Counsel for Mr Singh, Mr Hislop, referred us to a number of District Court and High Court cases which he said demonstrated that the starting point for the dishonesty offending in this case was excessive. However, the facts of those cases were not comparable and, as this Court has often observed, non-appellate decisions are not of great assistance in dealing with appeals in this Court. We did not find them helpful in this instance.
Mr Hislop argued that the starting point for the lead offending (those offences for which the maximum penalty was seven years imprisonment) should have been 14 months, with an uplift of approximately four months to reflect the totality of offending. He suggested that this starting point should also have included the charge of driving while disqualified. We do not consider that the lower Court authorities cited by Mr Hislop provide a proper basis for that submission, nor are we satisfied that a starting point in that order would have properly reflected the nature of the offending, the number of offences and the time over which they were committed.
Having considered those factors, we are not persuaded that the starting point adopted by the Judge, was, in itself, outside the available range, though we consider that it was near the top of that range.
Was the uplift for previous offending excessive?
As noted earlier, the Judge increased the starting point for the offending by nine months to reflect Mr Singh’s previous offending record. According to one of the pre-sentence reports provided to the Judge, Mr Singh has 90 previous convictions dating back to 1995 and, as already noted, over half of these are for dishonesty, and 41 of the dishonesty convictions relate to motor vehicles. Mr Hislop accepted that an uplift to reflect Mr Singh’s previous convictions was warranted, but suggested that it should not have been more than six months.
For the Crown, Ms Jelas, argued that nine months was within range, given that Mr Singh had continued to re-offend over a period of 15 years, and previous sentences seemed to have failed to bring about any change in his behaviour.
We agree that a nine month uplift was high, but we do not see this factor in itself as justifying interference by this Court.
Mr Hislop also suggested that there was an element of double counting in relation to Mr Singh’s previous record because the two and a half years starting point taken by the Judge seems to reflect in part the Judge’s view that Mr Singh’s prior record made him a candidate for a very high sentence of imprisonment. The Judge certainly made some comments about Mr Singh being deserving of a particularly severe sentencing response, but ultimately appears to have decided that he would not adopt that course. However, we think there is something in Mr Hislop’s argument that the starting point taken by the Judge would not have been appropriate in the case of an offender without the sort of record Mr Singh had, and that therefore there was some risk that the Judge may have double-counted this factor in setting a higher starting point, and, in addition, applying a high uplift.
Was there disparity between Mr Singh’s sentence and that of Mr Shannon?
The second ground of appeal was that there was disparity between the sentences imposed on Mr Singh and on Mr Shannon respectively.
Mr Shannon was a co-offender of Mr Singh in relation to the offences that occurred on 24 August 2009. He was sentenced on 24 June 2010 by Judge Morris to nine months imprisonment for unlawfully taking a motor vehicle, unlawfully getting into a motor vehicle and possession of an instrument for conversion. She allowed a 25 per cent discount for his guilty plea (in contrast to the 20 per cent allowed in relation to Mr Singh). In addition he received a further one month’s cumulative sentence for breach of release conditions.
Mr Hislop conceded that Mr Shannon faced fewer charges than the appellant, but argued that the difference in the sentences was still unjustifiable and gross.[3] It is clear that Judge Morris sentenced Mr Shannon on the basis that he was a secondary offender in relation to the offending on 24 August 2009 and had been led on by Mr Singh. She specifically ruled out the proposition that Mr Shannon was a recidivist offender, and noted that Mr Shannon’s drug addiction was a major factor in his offending. The term of imprisonment imposed on Mr Shannon was accompanied by a condition that, upon release he was to attend drug and alcohol counselling as directed including any residential programme, and that was to extend for 12 months after the expiry of his sentence. He was warned that if he breached that condition he could expect another significant prison term.
[3] R v Lawson [1982] 2 NZLR 219.
In our view, the differences in the offending for which Mr Singh and Mr Shannon face sentence and their previous records (although Mr Shannon had a very poor record of offending involving motor vehicles) make it difficult to give any weight to the disparity argument. It appears that Mr Shannon was treated with a great deal of sympathy by the sentencing Judge in light of his drug addiction and attempts to reform himself. He seems to have been given the benefit of the doubt. However, his treatment was not such that we would conclude that the disparity in sentencing was unjustifiable or gross, given the significant additional offending for which Mr Singh faced sentence, and the fact that that offending extended over a considerable period of time.
Nor do we see the higher discount given to Mr Shannon for his guilty plea as creating a gross or unjustifiable disparity. Mr Hislop acknowledged that the decision of the Supreme Court in Hessell v R[4] allowed leeway of this magnitude to sentencing Judges.
Overall assessment
[4] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
The Judge was entitled to take a sentencing approach which emphasised the sentencing purposes of deterrence and denunciation when dealing with a recidivist offender such as Mr Singh. However, we accept that there has been some element of double counting in that the high starting point taken by the Judge appears to have included some allowance for Mr Singh’s prior record and the very high uplift for previous offending is said to be required to reflect the same factor. We are satisfied that this has led the Judge to impose a sentence that is manifestly excessive. We therefore allow the appeal and reduce the sentence by three months in order to deal with that concern.
Solicitors:
Crown Law Office, Wellington for Respondent.
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