Singh v The King - [2023] NZCA 665

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA601/2022
[2023] NZCA 665

BETWEEN	GURPRITH SINGH Appellant
AND	THE KING Respondent

Hearing:	26 September 2023
Court:	Gilbert, Peters and Hinton JJ
Counsel:	N P Chisnall KC and L A Elborough for Appellant F M Culliney for Respondent
Judgment:	20 December 2023 at 3.30 pm

JUDGMENT OF THE COURT

A The application to adduce further evidence is declined.

BThe convictions are set aside. The sentence of 200 hours’ community work is set aside.
DWe make an order under s 106(1) of the Sentencing Act 2002 discharging the appellant without conviction on two charges of assault on a person in a family relationship.

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REASONS OF THE COURT

(Given by Peters J)

The appellant, Mr Singh, appeals against a decision of Judge K Lummis, declining to discharge him without conviction on two charges of assault on a person in a family relationship.[1] A jury found Mr Singh guilty of the offending following a trial before the Judge in May 2022.
[1]R v Singh [2022] NZDC 21824 [District Court judgment]; Sentencing Act 2002, s 106.
The Judge declined Mr Singh’s application as she was not satisfied the direct and indirect consequences of conviction would be out of all proportion to the gravity of his offending.[2] The Judge convicted Mr Singh and sentenced him to 200 hours’ community work.[3] The Judge also declined an application by the prosecution to make a protection order in respect of the victim of the offending, Mr Singh’s former wife.[4] The Judge was satisfied that Mr Singh’s offending was a “one off” incident and unlikely to be repeated.[5]
[2]District Court judgment, above n 1, at [41]–[42].
[3]Mr Singh completed that sentence in May 2023.
[4]District Court judgment, above n 1, at [49].
[5]At [46]–[47].
Mr Chisnall KC, counsel for Mr Singh on appeal, contends the Judge erred in determining the consequences of conviction were not out of all proportion to the gravity of the offending. Mr Chisnall made several specific submissions in support of this contention. These included that the Judge treated Mr Singh’s attempt to defend the charges as an aggravating, and almost determinative, factor; that the Judge erred in the manner in which she addressed the consequences of conviction on Mr Singh’s employment prospects;[6] and that she also erred in failing to give reasons as to why she did not consider the consequences of conviction were out of all proportion to the gravity of the offending.
[6]In support of this submission, Mr Chisnall sought leave to adduce what is essentially an updating affirmation from Mr Singh as to employment matters. For the reason given in [4] above, it is unnecessary for us to receive this evidence.
As it turns out, we are persuaded to allow this appeal on the basis of the consequences of conviction as regards Mr Singh’s immigration status and, in turn, the implications of those consequences for his relationship with his child. It follows that we need…

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 The King

Details

AGLC: Singh v The King [2023] NZCA 665
Case: [2023] NZCA 665
Decision Date: 20 December 2023 at 3.30 pm

CaseChat Overview and Summary

Gurprith Singh appeals against the decision of the District Court to decline his application for a discharge without conviction on two charges of assault on a person in a family relationship. The appeal was heard by the Court of Appeal of New Zealand, comprising Gilbert, Peters, and Hinton JJ. The appellant's counsel was N P Chisnall KC, with L A Elborough, while the respondent was represented by F M Culliney. The judgment was delivered on 20 December 2023. The key legal issue in this appeal was whether the consequences of conviction were out of all proportion to the gravity of the offending. Mr Singh's counsel argued that the Judge had erred in her assessment of the proportionality of the consequences of conviction, particularly in relation to the impact on his immigration status and the severing of the relationship with his daughter. The Crown, on the other hand, contended that the appeal should be dismissed, and the Judge's decision upheld.

The Court of Appeal found that the real and appreciable risk of deportation and the severing of the relationship between Mr Singh and his daughter were significant consequences of conviction that distinguished this case from others. The Court concluded that these consequences were out of all proportion to the gravity of the offending, which the Judge had assessed as moderately serious. Given this finding, the Court set aside the convictions and discharged Mr Singh without conviction under s 106(1) of the Sentencing Act 2002. The sentence of 200 hours' community work was also set aside.

Orders