Singh v The Queen - [2017] NZCA 398

IN THE COURT OF APPEAL OF NEW ZEALAND

CA499/2016
[2017] NZCA 398

BETWEEN	LAWRENCE MOHAN SINGH Appellant
AND	THE QUEEN Respondent

Hearing:	28 August 2017
Court:	Harrison, Duffy and Williams JJ
Counsel:	A J Maxwell-Scott and N P Chisnall for Appellant A J Ewing for Respondent
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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Singh v The Queen

Details

AGLC: Singh v The Queen [2017] NZCA 398
Case: [2017] NZCA 398
Decision Date: 12 September 2017 at 10.15 am

CaseChat Overview and Summary

Lawrence Singh appeals his conviction and sentence for 41 counts of burglary. Singh initially pleaded not guilty to all charges but later pleaded guilty to three charges at the start of his trial. He was found guilty of 34 charges and acquitted of four charges, receiving a sentence of seven years' imprisonment. Singh appeals on two grounds: first, that his trial counsel failed to advise him properly on the merits of the Crown case against him, depriving him of the opportunity to plead guilty and obtain a sentencing discount; and second, that the trial judge adopted an excessive starting point for sentencing and failed to make appropriate allowances for personal circumstances and an offer of reparations. The appeal against conviction is dismissed, and the appeal against sentence is allowed. The sentence of seven years' imprisonment is quashed and a sentence of six years' imprisonment is imposed.

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