Singh v The King
[2025] NZHC 2535
•2 September 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-339
[2025] NZHC 2535
BETWEEN JASWINDER BOBBY SINGH
Appellant
AND
THE KING
Respondent
Hearing: 2 September 2025 Appearances:
E Gatoloai and A C L Jordan for Appellant P J Puertollano for Respondent
Judgment:
2 September 2025
JUDGMENT OF VENNING J
[Appeal against sentence]
This judgment was delivered by me on 2 September 2025 at 3.45 pm
Registrar/Deputy Registrar
Date……………
Solicitors:Public Defence Service, Manukau, Auckland Kayes Fletcher Walker Ltd, Manukau, Auckland
SINGH v R [2025] NZHC 2535 [2 September 2025]
[1] Jaswinder Singh pleaded guilty to driving with excess breath alcohol (third or subsequent). In fact it was the ninth time he had been before the Court for such offending. Judge Andrée Wiltens imposed an end sentence of six months’ imprisonment.1 Mr Singh appeals. He says he should have been sentenced to home detention.
[2] In his sentencing notes Judge Andrée Wiltens recorded that at 1.00 am on 12 November 2024 Mr Singh drove his car to a bar. Police came to the bar, apparently alerted by a member of the public concerned about Mr Singh’s driving. When spoken to by police Mr Singh said he had been drinking all day. His breath alcohol reading was 848/400, more than twice the permitted lawful limit.
[3]The Judge then noted Mr Singh’s previous driving offending:
(a)1995, dangerous driving;
(b)1998, failing to provide the police with his address;
(c)in 2000, driving with excess breath alcohol;
(d)2004, failing to stop to ascertain injury and also dangerous driving again;
(e)2006, driving with excess breath alcohol with a level of more than twice the limit;
(f)2008, another excess breath alcohol, this time in the aggravated form with a reading of 637/400 and also later that year driving while disqualified;
(g)2009, driving with excess breath alcohol and driving while disqualified;
1 New Zealand Police v Singh [2025] NZDC 14312.
(h)2008, another set of driving while disqualified and driving with excess breath alcohol;
(i)2010, driving with excess breath alcohol again more than twice the legal limit and driving while disqualified;
(j)2012, providing false information to the police to conceal the fact that he was driving while he should not have been, and driving while disqualified, driving with excess breath alcohol again more than twice the legal limit;
(k)2013, driving while disqualified, and careless use;
(l)in 2014, driving while disqualified and driving with excess blood alcohol over twice the permitted limit. Subsequently in 2014 again, driving while disqualified.
[4] The Judge noted the maximum penalty for the offence was two years’ imprisonment. The Judge took a starting point of 12 months, then, after providing a 50 per cent reduction from that starting point to recognise the efforts Mr Singh had made over the past 10 years and his guilty pleas, the Judge was left with the sentence of six months’ imprisonment. While recognising that there had been no further offending over the last 10 years the Judge nevertheless concluded that Mr Singh posed a real risk to other members of the community so that the least restrictive outcome was the end sentence of six months’ imprisonment.
[5]The focus of the appeal was on the end sentence of imprisonment.
[6] In support of the appeal Mr Gatoloai submitted that the sentence was manifestly excessive and the Judge had erred by failing to convert the sentence of imprisonment to one of home detention. He argued that a sentence of home detention would adequately meet the principles of denunciation and deterrence. The Judge also erred by failing to take into account other sentencing principles such as rehabilitation and the desirability of keeping offenders in the community.
[7] Counsel referred in particular to cases of Ruru v Police and Hood v Police, both decisions of Thomas J where the Judge had allowed appeals against imprisonment and imposed home detention on recidivist drink drivers.2 In particular, in Ruru v Police the Judge noted that home detention would have precisely the same effect as imprisonment. Further, rehabilitation was more likely if the offender was in the community. Mr Gatoloai submitted that the Judge had erred by not considering the principles of rehabilitation and the desirability of keeping offenders in the community. In Fairbrother v R the Court of Appeal noted the imprisonment is the measure of last resort.3
[8] He submitted the following factors supported home detention as the appropriate outcome:
(a)the length of time since Mr Singh’s most recent previous conviction, 10 years;
(b)his acknowledgement of the need to rehabilitate himself;
(c)the available address;
(d)he was assessed as being at low to medium risk of reoffending in the PAC report; and
(e)the lack of any issues arising on bail or since the offending in November 2024.
Approach to the appeal
[9] The appeal is brought under Part 6, subpart 4 of the Criminal Procedure Act 2011 (CPA). This Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed upon conviction and a different sentence should be imposed.
2 Ruru v Police [2018] NZHC 114; and Hood v Police [2016] NZHC 1797.
3 Fairbrother v R [2013] NZCA 340 at [23].
[10] In Tutakangahau v R the Court of Appeal confirmed that s 250(2) of the CPA was not intended to change the approach to appeals against sentence.4 It still remains for an appellant to satisfy the appeal Court that the sentence was manifestly excessive or wrong in principle. The focus remains on whether the sentence was within range rather than the process by which it is reached.
[11] As Ms Puertollano submitted, the cases of Ruru v Police and Hood v Police can be distinguished.5 Mr Ruru had two very positive PAC reports and had demonstrated good compliance. Similarly, Mr Hood was extremely remorseful and had never received a term of imprisonment before. By contrast, Mr Singh has received terms of imprisonment and home detention. As Ms Puertollano observed, the 10-year hiatus in offending followed the imposition of imprisonment.
[12] The PAC report was somewhat ambiguous. A sentence of community detention was deemed suitable after the report writer referred to Mr Singh’s risk of reoffending as low to medium and after assessing his risk of harm as low to medium. Yet later, in terms of Mr Singh’s ability to comply with community-based sentences, it was noted that he had six breaches of community work and non-compliance noted on both sentences of supervision. He had also been non-compliant in relation to release conditions. Mr Singh’s compliance with community-based sentences was assessed as low.
[13] Also, with respect, the suggestion Mr Singh’s risk of reoffending was low to medium is difficult to support given his past performance. Next, the assessment of him being of low to medium risk to the public is difficult to reconcile with his previous driving offending which, apart from the driving with excess breath alcohol, also included dangerous driving, failing to stop and careless driving.
[14]The particularly relevant factors in Mr Singh’s case were:
(a)seriousness of the offending – the level of the reading which was very high;
4 Tutakangahau v R [2014] NZCA 279 at [26].
5 Ruru v Police, above n 2; and Hood v Police, above n 2.
(b)his criminal history;
(c)his history of non-compliance with community-based sentences; and
(d)the need to protect the public.
[15] It was also appropriate for the Judge to conclude that the principles of deterrence and denunciation and need to protect the public should prevail over the need to assist Mr Singh’s rehabilitation. In the circumstances the Judge was entitled to conclude that in Mr Singh’s case imprisonment was the least restrictive outcome.
[16] Mr Singh fails to satisfy the Court that the Judge erred in imposing a sentence of imprisonment.
[17]The appeal is dismissed.
Bail
[18] Mr Singh has been on bail pending this appeal. He is to surrender to the Central Police Station by 4.00 pm, 3 September 2025.
Venning J
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