Singh v The Queen
[2019] NZCA 374
•20 August 2019 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA46/2019 [2019] NZCA 374 |
| BETWEEN | SABPREET SINGH |
| AND | THE QUEEN |
| Hearing: | 29 July 2019 |
Court: | Miller, Peters and Woolford JJ |
Counsel: | Appellant in person |
Judgment: | 20 August 2019 at 11.00 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Mr Singh appeals the sentence of six years and six months imprisonment on five charges of aggravated robbery, one of assault with intent to rob, and two of theft by a person in a special relationship.
The facts
Mr Singh was night manager at a Countdown supermarket. He twice stole foodstuffs to a total value of near $2,300, and was dismissed on 6 March 2018.
Between 18 March and 23 July 2018 he committed five aggravated robberies. The victims were banks (x2), fast food outlets and supermarkets (x2). On each occasion he entered the premises in disguise and armed variously with a screwdriver, a tyre iron, a tyre pump, a poker and a crowbar. He approached staff and demanded money while brandishing his weapon. On one occasion he fled empty-handed when it seemed likely he would meet resistance. The total he stole in this way was $18,384.
The sentencing
Mr Singh denied the offending and pleaded not guilty. But in November 2018 he accepted a sentence indication.[1] Judge Collins indicated a starting point of 10 years imprisonment for the robbery offences with a discount of 20 per cent for guilty pleas.[2] The Judge sentenced Mr Singh accordingly on 14 December 2018.[3] He adopted a starting point of 10 years imprisonment for the robbery offences,[4] with no uplift for the thefts in a special relationship.[5] That starting point took totality into account. He gave Mr Singh a discount of 18 months (15 per cent) for personal factors, being remorse, lack of previous convictions and the hardship of serving his sentence far from his family in India.[6] He allowed 20 per cent for the guilty pleas.
The appeal
[1]R v Singh DC Auckland CRI-2018-044-2754, 9 November 2018 [Sentencing indication].
[2]At [4] and [5].
[3]R v Singh [2018] NZDC 26143 [Sentencing notes].
[4]At [5].
[5]At [8].
[6]At [7].
Mr Singh represented himself on appeal. He first claimed that he had understood the sentence indication was only four years imprisonment. He explained that things went wrong for him when he was unable to work. He blames this on a fire at a restaurant where he went to work after being dismissed by Countdown. He was paying medical bills in India for his father and offended because he did not have the means to pay. He borrowed money from banks and friends but was unable to repay them. When he offended he took weapons but had no intention of using them, noting he fled on the one occasion when his demands were not immediately met. The money he stole was sent immediately to India. His family are now in extreme hardship. He asks us to reduce his sentence to three years imprisonment. He understands that he will be deported to India on his release. He expressed remorse and emphasised that he has no previous convictions.
The sentence indication
Mr Singh stated in his written submissions that the Judge told him:
When I went to sentence indication in Auckland District Court Respected Judge Collin[s] told me that this is your first crime in your life and I understand the situation why this crime is triggered and why it happened. They told me I am giving you a starting point of “4 years” and giving you a first strike warning.
He claimed that the probation officer subsequently confirmed that the sentence indication was four years. The pre-sentence report has the following (incorrect) notation:
Sentencing Indication: Imprisonment — 4 y[ears]
Against that, Mr Singh was obviously in court when the indication was given, and he was represented then and at sentencing. The indication of ten years was reduced to writing by the Judge. Further, Mr Singh was also represented (by different counsel) when he lodged his appeal. There is no indication in the papers filed, including a memorandum from counsel seeking leave to withdraw after legal aid was declined, that the sentencing indication was in dispute. The Crown does not accept that there was any misunderstanding.
We explained to Mr Singh that we could not adjust his sentence on the assumption that the indication was four years. Rather, we would give him an opportunity to apply to set aside his guilty pleas on the basis that he misunderstood the sentence indication. We explained the process that would be followed, with affidavit evidence and an opportunity to waive privilege so his counsel at sentencing could give evidence. If the Court accepted that he pleaded under a mistake, his pleas would be set aside, allowing him to go to trial.
Mr Singh instructed us that he does not wish to do that. He frankly accepts that he committed the crimes, and he wishes to have his appeal dealt with now. We considered it appropriate to proceed accordingly.
The starting point
The offences are intrinsically serious, but these were not especially serious examples of their type. Mr Dickey, for the Crown, accepted that the risk that violence would be used was somewhat less than in some comparable cases.[7] Against that, the impact on some of the staff who were robbed has been considerable. One speaks of ongoing and debilitating anxiety which is being addressed through counselling and medical support.
[7]R v Davis CA472/00, 20 March 2001; R v Lisate CA35/03, 4 December 2003; and R v Kirk [2017] NZHC 673.
The Judge appears to have approached the sentence indication on the basis that each charge merited a starting point of four years imprisonment.[8] An alternative approach would have been to take the most serious, one of the bank robberies that netted Mr Singh $15,000, and treat it as the lead offence. At the sentence indication hearing the Crown suggested a starting point of five years and six months on that basis.[9] We accept that that would be an appropriate starting point.[10] We further accept that each of the other offences would merit a starting point of four years, taken alone. So the 10 years which the Judge began with was appropriate after allowing for totality.
[8]Sentencing indication, above n 1, at [4].
[9]At [3].
[10]R v Mako [2000] 2 NZLR 170 (CA) at [54].
We accept that although the offences occurred over a period of some months, they could be described as a spate; they were of the same type and driven by the same underlying cause. The offending was motivated by Mr Singh’s inability to support his family in India. As the only son he was under great pressure to do so, and that somewhat mitigates his culpability.
We accept the submissions of Mr Dickey that the starting point of ten years was within range for the offending.[11] That is so notwithstanding that no actual violence was used. There were five aggravated robberies, each a serious offence, and an allowance must be made for the two theft charges.
Mitigating factors
[11]R v Mako, above n 10; and R v Davis, R v Lisiate and R v Kirk, above n 7.
The allowance of 20 per cent for guilty pleas was appropriate. The question is whether more than a further 15 per cent ought to have been allowed for personal mitigating factors, being remorse, previous good character and hardship. The allowance to be made for these factors is a matter of impression for the sentencing Judge. The appropriate allowance, if any, may vary considerably with the circumstances.
We are prepared to accept that Mr Singh is genuinely remorseful. He was entitled to an allowance for that, in addition to good character and hardship. We accept too that he was entitled to be treated as a first offender. We have accepted too that he offended because of the very strong cultural pressure that he faced to support his family. We are prepared to accept that he will present a low reoffending risk on his eventual release into society in India.
However, we do not think that the hardship he faces is exceptional. He has lived in New Zealand since 2012, having come here on a study visa, and he is fluent in English. Although his parents and sisters are in India, he has a cousin and an aunt here.
Mr Singh asked us to make an allowance for his good conduct in prison. He provided us with a report which indicated that he is a compliant prisoner. We commend him for that, but we are not able to take it into account at sentencing. No doubt it will influence his parole in due course.
The question is whether the Judge ought to have given a larger discount than 15 per cent. Ultimately, we are not persuaded that he ought to have done so. It follows that the sentence was not manifestly excessive.
Decision
The application for an extension of time to appeal is granted.
The appeal is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
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