Singh v The Queen

[2021] NZCA 173

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA682/2018
 [2021] NZCA 173

BETWEEN	RAJESHWAR SINGH Applicant
AND	THE QUEEN Respondent

Court:	French, Courtney and Collins JJ
Counsel:	Applicant in person J E Mildenhall for Respondent
Judgment: (On the papers)	10 May 2021 at 12.30 pm

JUDGMENT OF THE COURT

The application to recall this Court’s judgment in Singh v R [2016] NZCA 582 is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

1. In 2014, Mr Singh pleaded guilty to murdering his estranged wife.  Mr Singh was sentenced in accordance with a sentence indication to life imprisonment, with a minimum period of imprisonment (MPI) of 16 years.[1]

   [1]R v Singh [2014] NZHC 1246.

2. In 2016, Mr Singh’s appeal against sentence was dismissed by this Court.[2]  Mr Singh then applied in 2018 to have this Court recall its 2016 decision.  That application was dismissed.[3]  Mr Singh has now brought a second recall application.

Background

[2]Singh v R [2016] NZCA 582.

[3]Singh v R [2019] NZCA 110.

1. Mr and Mrs Singh were living at separate homes at the time of her murder.  Mr Singh was distressed at the breakup of his relationship with his wife.  On 26 November 2013, he drove to his wife’s home, broke in, stabbed her multiple times and then endeavoured to hang himself in the garage.  The police arrived in sufficient time to rescue Mr Singh.  Mr Singh’s explanation was that his wife had been stabbed by accident.

2. Ronald Young J agreed to give Mr Singh a sentence indication.  In doing so, the Judge explained that s 104 of the Sentencing Act 2002 was engaged because the murder involved premeditation and a home invasion.  The Judge adopted a nominal starting point of an MPI of 18 years, which he reduced to 16 years to reflect Mr Singh’s guilty plea.[4]  Mr Singh accepted that sentence indication, pleaded guilty and was then sentenced in accordance with the sentence indication.

Grounds for application

[4]Singh v R [2014] NZHC 753 [Sentence indication].

1. Mr Singh now wishes to challenge the MPI.  He alleges Ronald Young J told him he would receive a discount of 30 per cent if he pleaded guilty.  According to Mr Singh, that discount would reflect 25 per cent for Mr Singh’s guilty plea and five per cent to reflect his mental health issues.

Recall jurisdiction

1. The Supreme Court in Uhrle v R[5] and this Court in Lyon v R,[6] explained that a recall may be granted where:

   (a)there has been an amendment to a relevant statute or regulation since the hearing;

   (b)where a relevant authority or a legislative provision was overlooked by the Court whose decision is sought to be recalled; or

   (c)where for some other very special reason justice requires that the judgment be recalled.

   [5]Uhrle v R [2020] NZSC 62 at [29].

   [6]Lyon (No 2) v R [2020] NZCA 430 at [12].

2. The third ground, which Mr Singh wishes to rely upon, requires an applicant to establish a probable injustice that is substantial or significant.[7]  This is a particularly high threshold for an applicant to reach.  The recall procedure is not ordinarily available where the applicant has a further right of appeal or the ability to seek leave to do so.[8]

Analysis

[7]Lyon (No 2), above n 6, at [19].

[8]At [18].

1. Mr Singh’s application falls short by a considerable margin from establishing the criteria that is normally required for this Court to exercise its recall jurisdiction. 

2. In his sentence indication, Ronald Young J said:[9]

   [14]     … In my view the only justifiable deduction is the guilty plea.  I acknowledge that Mr Singh was suffering from depression.  However, I do not consider having read the psychiatric and psychological reports that his condition was such that it either reduced his culpability or means in the future that any term of imprisonment would be especially onerous for him.

   …

   [16]     … I deduct two years for the guilty plea from the start sentence of 18 years and, therefore, the sentence indication is one of firstly, life imprisonment and secondly, a minimum sentence of imprisonment of 16 years.

   [9]Sentence indication, above n 4.

3. Ronald Young J clearly said that Mr Singh could only receive a two-year deduction if he pleaded guilty.  At no point does the Judge suggest Mr Singh could receive a 25 per cent discount.

4. The Judge also expressly said he would not make any deduction to the MPI because of any concerns about Mr Singh’s mental health.

5. There is therefore no basis upon which this Court could exercise its recall jurisdiction, particularly, as Mr Singh has not exhausted his right to seek leave to appeal to the Supreme Court.

Result

1. The application to recall this Court’s judgment in Singh v R [2016] NZCA 582 is declined.

Solicitors:
Crown Law Office, Wellington for Respondent