| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA499/2016 [2017] NZCA 398 |
| BETWEEN | LAWRENCE MOHAN SINGH |
| AND | THE QUEEN |
| Hearing: | 28 August 2017 |
Court: | Harrison, Duffy and Williams JJ |
Counsel: | A J Maxwell-Scott and N P Chisnall for Appellant |
Judgment: | 12 September 2017 at 10.15 am |
JUDGMENT OF THE COURT
AThe appeal against conviction is dismissed.
B The appeal against sentence is allowed.
CThe sentence of seven years’ imprisonment is quashed and a sentence of six years’ imprisonment is imposed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
The police charged the appellant, Lawrence Singh, with 41 counts of burglary.[1] He pleaded not guilty to all charges. However, when his trial started in May 2016 before Judge Andrée Wiltens and a jury in the Manukau District Court, Mr Singh pleaded guilty to three of the charges. His trial proceeded on the remaining 38 charges. He was found guilty of 34 charges and acquitted of four charges. Judge Andrée Wiltens convicted and sentenced him to seven years’ imprisonment.[2]
[1]Crimes Act 1961, s 231.
[2]R v Singh [2016] NZDC 14461 [Sentencing notes].
Mr Singh now admits his guilt on all 37 charges and appeals against his conviction and sentence on two grounds. The primary ground is that his trial counsel, Edward Faleauto Johnston, failed to advise him properly on the merits of the Crown case against him on the 34 counts on which he found guilty. As a result he lost an opportunity which he would have taken to plead guilty and obtain an appreciable sentencing discount against the appropriate starting point. His secondary ground is that the Judge adopted an excessive starting point of eight years’ imprisonment and failed to make appropriate allowances for personal circumstances and an offer of reparations.
As noted, Mr Singh’s appeal is against conviction and sentence. The appeal against conviction was apparently advanced to pre-empt questions raised by this Court in R v Hoo about the proper conceptual status of an appeal of this nature.[3]But the correct approach is that adopted by this Court in R v Patrick.[4]The appeal should be addressed as an appeal against sentence only with the consequence that if Mr Singh’s ground of challenge is made out we should allow the appeal and impose a substituted sentence. We can therefore dismiss the conviction appeal and address directly the underlying complaint that the sentence is manifestly excessive.
Facts
[3]Hoo v R [2017] NZCA 60 at [34].
[4]R v Patrick [2008] NZCA 115 at [31].
The relevant facts are not now in dispute. Mr Singh committed the burglaries between May 2013 and August 2014. Under the cover of late evening or early morning, his standard mode of operation was to break and enter newly constructed but unoccupied houses in residential developments in Flat Bush, Auckland. He stole large, high-value home fittings — such as heat pumps, ovens and slider doors — which had been delivered to but not yet installed at…
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CaseChat Overview and Summary
The court found that Singh's trial counsel failed to advise him competently on the merits of the Crown case. Counsel did not properly consider the strength of the evidence against Singh, including the compelling DNA evidence and other incriminating evidence. The court found that competent counsel would have advised Singh to plead guilty to all charges, and that Singh likely would have accepted such advice. The court also found that the trial judge's starting point for sentencing was appropriate, but that Singh should have received a greater discount for his late pleas. The court allowed the appeal against sentence to the extent of reducing the sentence by one year, resulting in a sentence of six years' imprisonment.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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