Singh v The King
[2023] NZHC 2781
•5 October 2023
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2023-463-53
[2023] NZHC 2781
BETWEEN KARANDEEP SINGH
Appellant
AND
THE KING
Respondent
Hearing: 4 October 2023 Appearances:
D Hall for Appellant
G Banuelos for Respondent
Judgment:
5 October 2023
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by Justice Lang On 5 October 2023 at 9.00 am
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
Gordon Pilditch, Office the Crown Solicitor, Rotorua Progressive Legal, Rotorua
SINGH v R [2023] NZHC 2781 [5 October 2023]
[1] Mr Singh pleaded guilty in the District Court to a single charge of indecent assault. On 12 May 2023, Judge A J S Snell sentenced him to 10 months home detention.1
[2] Mr Singh appeals against sentence. He contends the Judge adopted a starting point for the sentence that was too high and gave insufficient discount for mitigating factors. He says this resulted in the Judge imposing an end sentence that was manifestly excessive.2
The offending
[3] Mr Singh and the complainant had corresponded with each other on social media for a period of approximately eight months before meeting in person. They eventually arranged to meet in Rotorua where Mr Singh was working. The complainant was visiting Rotorua whilst on holiday with her family. At the time of the offending, Mr Singh was 25 years old and the complainant was a few years younger.
[4] Mr Singh met with the complainant at a cinema but, having missed the movie start time, he and the complainant purchased some take-away food and then drove to a lakeside reserve to eat their meal. The reserve at which Mr Singh parked the vehicle was in a remote area that the complainant was not familiar with.
[5] After they arrived at the reserve, Mr Singh placed his hands on the complainant’s hand and her upper leg. He then endeavoured to kiss the complainant even though she made it clear she did not want to be kissed and was struggling to push him away.
[6] Mr Singh then placed his hand under the complainant’s shirt and endeavoured to expose her breast by pulling her bra down. He also tried to unclasp her bra by putting his hands under her shirt. The complainant resisted and began crying and
1 R v Singh [2023] NZDC 9545.
2 During the hearing Mr Hall abandoned arguments that the Judge failed to give Mr Singh credit for youth and remorse. These concessions were responsibly made because neither ground of appeal was tenable.
telling Mr Singh to stop. She backed away from Mr Singh to the extent she was able. Undeterred, Mr Singh reached into her pants and underwear and endeavoured to touch her genitalia. She continued crying and asking him to stop. He became persistent and asking for sex to the extent that the complainant described him as “begging for sex”.
[7] Mr Singh then undid his pants and held the complainant’s hand against his penis. She again told him “no”, and tried to push him away. She said “I don’t want that. Please take me home”.
[8] Mr Singh then stopped touching the complainant and told her he was going to a service station. He stopped at a service station and purchased a box of condoms. He then drove the complainant to his home address, where he parked in the driveway. He then got out of the vehicle and asked the complainant to come inside. She refused to get out of the vehicle and he grabbed her by the arm and tried to pull her out. She started crying loudly and he told her to keep quiet. Eventually, the complainant managed to close the door of the vehicle and tried to lock it from the inside. Mr Singh then got back into the vehicle and drove back into the central city area. At this stage, the complainant was able to jump out of the vehicle and hide while Mr Singh drove around the area looking for her for approximately 20 minutes.
[9] When the police spoke to Mr Singh he denied offending in a sexual way against the complainant. He initially faced charges of sexual violation by unlawful sexual connection, abduction for the purpose of sexual violation and indecent assault. These were eventually reduced to the single charge of indecent assault. He entered a guilty plea to this charge at an early opportunity.
The sentence
[10] The Judge noted that there was no tariff or guideline judgment for the offence of indecent assault. This is because the offence can be committed in many different ways. The Crown had indicated it considered a starting point of around 21 months imprisonment was appropriate, whereas counsel for Mr Singh contended that a starting point of no more than six months imprisonment was justified. The Judge observed that the cases relied on by Mr Singh’s counsel were of little relevance because they related to very different circumstances. He noted that the maximum sentence was
seven years imprisonment and considered the starting point for Mr Singh’s offending fell within the range of two years six months to two years 10 months imprisonment. He then selected a starting point of two years six months imprisonment.
[11] The Judge applied a discount of 25 per cent to reflect the guilty plea because Mr Singh had offered at an early stage to plead guilty to a charge of indecent assault. He then applied a discount of five per cent to reflect that, at 27 years of age, Mr Singh has no previous convictions. Having reviewed a cultural report that Mr Singh’s counsel had tendered under s 27 of the Sentencing Act 2002 the Judge did not see any nexus between factors identified in that report and the present offending. He nevertheless provided Mr Singh with a five per cent discount to reflect issues raised in the cultural report, noting that the discount was generous. This meant the Judge had identified discounts totalling 35 per cent, or 10.5 months. The Judge then converted the resulting sentence of 19.5 months imprisonment to one of 10 months home detention.
The appeal
[12] As already noted, Mr Hall advances two grounds of appeal on Mr Singh’s behalf. The first is that the Judge selected a starting point that was too high. The second is that he gave Mr Singh insufficient discount to reflect mitigating factors identified in the cultural report.
The starting point
[13] In determining that the offending required the starting point to be between two and a half years and two years 10 months imprisonment the Judge took into account the following aggravating features:
(a)The vulnerability of the victim. This arose from the fact that she was a visitor to the city and Mr Singh had driven her to an isolated area where she had no realistic means of escaping. She was also considerably smaller in stature than Mr Singh. In addition, he effectively kept her detained in his vehicle for a considerable period while he offended against her in a sexual way.
(b)The offence involved a breach of trust, given that Mr Singh took advantage of the first occasion on which he had met the complainant in person to endeavour to engage in sexual activity with her. Prior to this, their relationship had been purely platonic.
(c)The charge encompassed several different forms of indecent assault. These included Mr Singh’s efforts to kiss the complainant and his attempts to touch her breasts and genitalia. He also forced the complainant to hold her hand on his penis. The complainant was making it clear throughout that she did not consent to what was going on.
(d)Although the offending may have begun in an opportunistic way, Mr Singh’s actions became premeditated because, in the knowledge that the complainant was not consenting to what he had been doing, he went to the service station to purchase condoms. He then drove her to his home address rather than to where she wanted to be dropped off.
(e)The offending had caused very considerable harm to the victim. The offending has resulted in her suffering ongoing psychological issues.
[14] Mr Hall contends that the Judge should have selected a starting point by undertaking a detailed analysis of the sentencing authorities counsel had provided with their submissions. Instead, he suggests the Judge selected the starting point in an arbitrary way.
[15] I disagree. In cases involving indecent assault it is very difficult to gain a significant degree of assistance from other cases because the circumstances of other cases are always different. In the present case, the aggravating features the Judge identified clearly raised the seriousness of the offending above the lower end of the available spectrum. Mr Singh can consider himself fortunate, in my view, that the Crown did not persist with the more serious charges that it originally laid.
[16] I consider the aggravating features of Mr Singh’s offending could easily have led the Judge to select a starting point closer to three years imprisonment. This would still have been less than one-half of the maximum sentence available. I therefore do not accept Mr Hall’s submission that the starting point the Judge selected was too high.
Discount for factors identified in cultural report
[17] In broad terms, the cultural report explained that Mr Singh had grown up in India where patriarchal beliefs were prevalent. Mr Hall argues that this gave rise to a sense of entitlement by Mr Singh that led to him overriding the complainant’s obvious lack of consent to what was occurring. Mr Hall says this is not surprising given the fact that Mr Singh had seen women being repeatedly demeaned and assaulted within his own culture and his own family. Such powerful conditioning meant that it was no surprise Mr Singh acted in the way he did towards the complainant.
[18]Mr Hall developed his submission in this way:
The theme really is that his cultural background has led to the appellant (who notably also reports being the victim of sexual and physical violence himself) taking a view of women – including women in whom he has taken a sexual interest, as in the instant case, as inferior, or naturally (by nature of their gender) subordinate beings (to men) whose appropriate place is to submit, to be controlled – if necessary violently – by men, and in respect of whom he is entitled to act towards as he likes. This is deeply relevant to the appellant’s behaviour in persisting in the face of clear refusal. In other words, the appellant knew the victim was saying no, he just chose not to accept it. The reason he refused to accept this refusal was, in brief, because he was not raised to respect the right of women to say no to male control and felt entitled to assault her in order that his will in respect of sexual gratification prevail. Notably, the [Judge] said “There is no patriarchal belief here that you control things”. This is broadly speaking correct, but it fails to recognise that this outlook is essentially what the appellant – who only moved to NZ in 2019 – was brought up with.
[19]The Judge dealt with the matters raised in the cultural report as follows:
[53] I look to the cultural report. Whilst you have may have looked at pornography in your young formative teenage years and had some form of attraction to white women, as indicated, you may well have had patriarchal beliefs and there may be cultural aspects that are there. There is no nexus to that leading to this type of offending.
[54] This was not some mistaken view of matters. On the summary of facts on which you are to be sentenced, it is utterly clear that this victim was making it clear to you that she was not interested, she did not want this sexual contact,
she did not want you touching her, kissing her, trying to expose her breasts or take her bra off, trying to get your hand down her pants and underwear to touch her genitalia, and she certainly did not want you grabbing her hand and placing it on your exposed penis. When she was asking you to take her home and when she was crying, she did not want you stopping and buying condoms and then taking her to your house, where you tried to get her out of the car and to come into your house. That led to her jumping out of your car before you had stopped in the CBD in an effort to get away from you.
[55] Really, I do not believe that this has anything to do with mistaken cultural beliefs or anything like that. I do not believe that there is any implied consent because you have been in an online platonic exchange of details-type relationship with her. This was the first meeting, and she made it abundantly clear that there was to be no sexual involvement and you pursued that when you had her isolated and in a very vulnerable position.
[56] I will give you five per cent discount for the content of your cultural report, and even that I consider to be generous. There is no nexus between the matters raised and the offending. You had been in New Zealand for over two years at the time of the offending and you must understand that when you come to another country where no means no, you need to adapt to no means no. That means you do not persist.
[20] In this context, I take a similar view as did the Judge. The cultural background that Mr Singh describes may have played a role in his initial attempts to engage in sexual activity with the complainant. However, it cannot begin to explain his persistence in continuing with such activity once the complainant made it clear that she did not consent to what he was doing. Other than his self-reported views there is no evidence to substantiate his proposition that men in India feel entitled to override a female’s lack of consent to sexual activity due to cultural beliefs.
[21] The Court of Appeal recently rejected a similar argument in N (CA425/2022) v R, where the Court found that, even if it was to accept evidence that the offender’s cultural background might involve the subservience of women, this would not explain ongoing physical and sexual violence in an intimate relationship.3 Mr Singh’s offending obviously occurred in a different context but the observations made by the Court of Appeal are nevertheless apposite to the circumstances of the present case. I consider Mr Singh was fortunate that the Judge gave him a five per cent discount for the matters identified in the cultural report. As a matter of sentencing principle it would have been wrong to give any greater credit than that.
3 N (CA425/2022) v R [2023] NZCA 313 at [97]–[98].
[22] Further, the ultimate issue for this Court in exercising its appellate function is to determine whether the end sentence was manifestly excessive. As I have already observed, the starting point could easily have been higher. Mr Singh was also fortunate to receive the benefit of a 25 per cent discount for his guilty plea. This came on top of the Crown’s decision to reduce the charges to a single charge of indecent assault which carried a much lower maximum sentence. I do not consider there is any basis on which to conclude an end sentence of 10 months home detention given the gravity of his offending is manifestly excessive.
Result
[23]The appeal against sentence is dismissed.
Lang J
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