Singh v The Queen - [2020] NZHC 491

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-503

[2020] NZHC 491

BETWEEN
SHAURYA SINGH

Appellant

AND

THE QUEEN

Respondent

Hearing: 4 February 2020

Appearances:

H G de Groot for Appellant K B Guilford for Respondent

Judgment:

23 March 2020

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 23 March 2020 at 11.30 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors: Meredith Connell, Crown Solicitor, Auckland Counsel: H G de Groot, Auckland

SINGH v R [2020] NZHC 491 [23 March 2020]

[1] The appellant, Mr Singh, appeals against a decision of Judge Blackie declining Mr Singh’s application for a discharge without conviction on one charge of assault with intent to injure and one of male assaults female.1 The Judge convicted Mr Singh and ordered him to come up for sentence if called upon within nine months.

[2] Mr Singh’s appeal proceeds as an appeal against both conviction and sentence.2 The appellate Court must be persuaded the Court below was wrong, but it reaches its decision on its own view of the merits.3

Applicable law

[3] A judge may grant a discharge without conviction if the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.4 In determining whether the consequences would be so disproportionate, the Judge must assess the gravity of the offending having regard to the aggravating and mitigating factors of the offending and offender; identify the likely direct and indirect consequences of a conviction; and then assess whether the latter are out of all proportion to the former.5

Background

[4] At the time of the offending, Mr Singh and the victim, to whom I shall refer as Z, had been in a relationship for three years. Mr Singh, who is 29, came to New Zealand in 2009. He completed a tertiary qualification in 2014. Immigration New Zealand issued Mr Singh with a permanent resident visa in May 2017. Mr Singh is the sole member of his family in New Zealand.

[5] Z is in her late 20s . She came to New Zealand when she was 17. Z also holds a permanent resident visa. Mr Singh and Z have a child, now aged three. The child is

1      New Zealand Police v Singh [2019] NZDC 21491; Crimes Act 1961, ss 194(b) and 193.
2      Ovtcharenko v Police [2017] NZCA 65.
3      R v Taulapapa [2018] NZCA 414 at [18] citing H (CA680/2011) v R [2012] NZCA 198 at [35]–[36].
4      Sentencing Act 2002, ss 106 and 107.
5      Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].

a New Zealand resident by birth. Mr Singh is a business analyst and Z herself is employed in a role that requires considerable skill.

[6] Prior to the offending, Z had — unilaterally or at least without Mr Singh’s agreement — returned to her home country, with…

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 [2020] NZHC 491
Case: [2020] NZHC 491
Decision Date: 23 March 2020

CaseChat Overview and Summary

The case of Singh v The Queen was heard in the High Court of New Zealand and involved an appeal by Mr Singh against a decision of the District Court declining his application for a discharge without conviction on charges of assault with intent to injure and male assaults female. The legal issues the court had to decide included whether the Judge was correct in assessing the gravity of the offending, the nature of the consequences of conviction, and whether these consequences were out of proportion to the offending. The court considered the mitigating factors such as Mr Singh's guilty plea, positive feedback from Corrections, attendance at a "Living Without Violence" course, and support from the victim, Ms Z, in favor of a discharge without conviction. The court found that the consequences of conviction, particularly the risk to Mr Singh's employment and immigration status, were out of proportion to the gravity of the offending. The court concluded that the direct and indirect consequences of a conviction were indeed out of all proportion to the gravity of the offending, and it allowed the appeal and discharged Mr Singh without conviction on the charges of assault with intent to injure and male assaults female. The decision underscores the importance of proportionality in sentencing and the need to consider all relevant factors in determining the appropriate consequences of a conviction.

Orders