Singh v The Queen
[2020] NZHC 491
•23 March 2020
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 the child, for eight months so that she could have the support of her family. Z returned to New Zealand in May 2018. The unilateral nature of her decision to leave New Zealand, with the child, was a source of dispute.
[7] The offending occurred several weeks later. Mr Singh and Z were not living together at that point. Mr Singh’s account is that he and Z again argued over Z’s return to her home country, at which point Z said words to the effect that, if they separated, she would make it difficult for Mr Singh to see the child.
[8]The summary of facts is as follows:
INTRODUCTION
[Mr Singh], the defendant in this matter and the victim [Z] had previously been in a relationship for about 3 years. They have recently separated. They have a 1 year old [child] together.
CIRCUMSTANCES
At about 10.00pm on Monday the 22nd of October 2018 the defendant and the victim were in the garage of the victim’s apartment complex.
The defendant and the victim have been having a verbal argument.
The defendant lashed out at the victim, kicking her in the left thigh area. The victim backed away and the argument continued.
The defendant has tried to forcibl[y] hug the victim but was pushed away. He then strangles the victim using both hands for approximately 5 seconds.
The incident was captured on CCTV cameras. INJURIES TO VICTIM
During the struggle the victim suffered bruising on her left arm. She also
reported having a sore throat and losing her voice as a result of being strangled.
DEFENDANT COMMMENTS
In explanation the defendant stated that the couple had a verbal only argument and no assault took place.
The defendant has not previously appeared before the Court.
ORDERS
An order is sought for a Temporary Protection Order on behalf of the victim.
[9] The kick constituted the actus reus of the male assaults female charge and Mr Singh’s actions in putting his hands around Z’s neck was the actus reus of the assault with intent to injure charge.
[10] The police charged Mr Singh shortly thereafter, with the offences referred to in [1] above and with threatening to kill. A temporary protection order was made. The police later withdrew the threatening to kill charge, the summary of facts was finalised and Mr Singh then entered guilty pleas in early 2019.
District Court decision
[11]The Judge assessed the offending as of “moderate” gravity.6
[12] The consequences of conviction on which Mr Singh relied were risks to his current and future employment, to travel he might undertake, and to his immigration status and the risk of deportation.
[13] The Judge was not persuaded that conviction would have any of the first three consequences. As to immigration and the risk of deportation, the Judge said Mr Singh was “certainly ... at risk for deportation but it is not inevitable”.7 The Judge considered there was a “very good chance” Mr Singh would be able to remain in New Zealand if steps were taken to deport him.8
[14] Mr Singh contends that the Judge erred in each stage of his assessment, that is as to the gravity of the offending, the nature of the consequences of conviction, and the proportionality assessment. Crown counsel, Ms Guilford, supports the Judge’s decision.
6 New Zealand Police v Singh, above n 1, at [15].
7 At [18].
8 At [18].
Gravity of the offending
[15] Mr de Groot, counsel for Mr Singh, submits the Judge erred in determining the offending was of moderate gravity. Mr de Groot does not diminish the seriousness of Mr Singh’s actions in putting his hands around Z’s neck, however fleetingly. Such conduct is treated seriously because it may be a sign of worse things to come. Rather, Mr de Groot submits the Judge erred in other respects.
[16] First, Mr de Groot submits the Judge erred by failing to take account of mitigating factors personal to Mr Singh in determining the gravity of the offending. These mitigating factors were that:
(a)Mr Singh pleaded guilty to the offending.
(b)Corrections’ Provision of Advice to Courts Report, dated 22 May 2019, was positive. Corrections assessed Mr Singh’s likely risk of reoffending as low; his risk of harm to others as “medium” (this being a reflection of the nature of the offending); and recommended a sentence of supervision or community work.
(c)Of his own volition, Mr Singh attended a 20-week “Living Without Violence” course.
(d)Mr Singh and Z attended a restorative justice conference on 23 May 2019. The facilitators’ report was positive regarding the outcome of the conference; Mr Singh’s acceptance of his offending; and his resolve that there would be no repeat of the same.
(e)Mr Singh had no prior convictions.
(f)Z supported Mr Singh’s application for a discharge without conviction, stating she wished to continue her relationship with Mr Singh and to live with him and their child as a family. Z also stated, and this is apropos of potential immigration difficulties, that she would not wish to relocate to India and she did not anticipate Mr Singh would be able
to relocate to her home country. The gist of Z’s affirmation was that she considered New Zealand home, wished her child (a New Zealand citizen) to grow up here and she intended to stay.
[17] By two affidavits, Z has made it clear, to the District and High Courts, that she wishes Mr Singh to be discharged without conviction, for his, her and the child’s sake. The Court treats with caution such statements from a victim of domestic violence, as they may be the product of coercion or intimidation. However, having read Z’s affidavits, I am satisfied she means what she says.
[18] In addition to these omissions, Mr de Groot referred me to matters he contended the Judge took into account in error.
[19] First, the Judge said in his decision that Mr Singh had told Z he wished “to kill her”.9 The summary of facts, on the basis of which Mr Singh pleaded guilty, did not contain such a statement. Mr de Groot submits the Judge may have been under a misapprehension in this respect.
[20] Secondly, the Judge referred to the offence of strangulation.10 The offence has its own, quite different, elements to the offences with which Mr Singh was charged, and it carries a maximum penalty of seven years’ imprisonment. The maximum term of imprisonment for Mr Singh’s offending was three years, on the assault with intent to injure charge. Mr de Groot submitted the Judge may have been influenced by this more serious offence, which was not charged, let alone proven.
[21] Thirdly, the Judge referred to a submission by the police that starting points of up to two years’ imprisonment had been considered appropriate for “similar type offences”.11 A review of the cases to which the prosecution referred the Judge was they concerned offending more serious than in the present case.12
9 New Zealand Police v Singh, above n 1, at [2].
10 At [11]. See Crimes Act 1961, s 189A.
11 At [13]
12 Teka v Police HC Auckland CRI-2009-404-253, 7 September 2009; Waitai v R [2014] NZHC 2116; and Sharma v R [2015] NZCA 468.
[22] For completeness, I record I am not persuaded there is any substance in Mr de Groot’s submission that the Judge implicitly indicated the potential penalty of three years’ imprisonment counted against a discharge.
Discussion
[23] Ms Guilford accepts that the Judge did not refer to the various matters in [16] above expressly when assessing the gravity of the offending. However, she submits the Judge was clearly aware of them, as he referred to them at the outset of the sentencing. Accordingly, Ms Guilford submits the Judge must have had these factors in mind when he assessed the gravity of the offending.
[24] The Judge did refer to the various mitigating matters but, absent any express reference by him to them when assessing gravity, the safest course for me is to reassess the gravity of the offending.
[25] An offender who puts his hands around the neck of another, even fleetingly, gives cause for concern for the reasons I have mentioned. Equally, of his own volition Mr Singh has done everything he can to atone for the offending and to ensure it never happens again. Taking all matters into account, I accept Mr de Groot’s submission that the offending is of low to moderate gravity — not the act itself but having regard to all relevant factors.
Consequences
[26] I turn now to the direct and indirect consequences of a conviction. For the purposes of this analysis, the Court takes account of consequences of which there is a “real and appreciable risk”.13
[27]Mr de Groot contends there is such a risk as regards the following.
[28] Mr Singh’s employment contract permits his employer to dismiss him without notice for serious misconduct. Serious misconduct is defined so as to include a conviction for an offence involving violence.
13 Prasad v R [2018] NZCA 537 at [11]; and DC (CA47/2013) v R [2013] NZCA 225 at [43].
[29] The Judge accepted dismissal was a possibility but stated he considered it “unlikely” as Mr Singh was “a well regarded employee” and there was no evidence the charges would interfere with his employment.14
[30] Mr de Groot submits there was no evidential basis for the Judge’s assessment of how Mr Singh was regarded.
[31] I accept there is no evidential basis in the affidavits and documents before me. On its face, the employment contract permits Mr Singh’s employer to terminate. However, there is no evidence of a real and appreciable risk the employer will do so.
[32]As to the potential risk to any future employment, the Judge said:15
... Likewise, with any future employment, the case law is fairly well- established that most reasonable employers are concerned more with the ability to undertake the particular work and the suitability of the worker rather than hold against a person the fact that they have a conviction.
[33] Again, there is no evidence that convictions would cause a real and appreciable risk to Mr Singh’s future employment but I bear in mind those statements of the Court of Appeal in R v Taulapapa that are pertinent to this case.16 The first is that the consequence of a conviction may be severe if an employer is unwilling to look behind a conviction to consider the person’s merits, such as where the conviction is for a serious offence which does not fairly reflect the offender’s character or culpability. I think this is such a case, having regard to the matters in [16] above. Secondly, in some circumstances, the Court may assume an applicant with a conviction is likely to be excluded without inquiry where employers must filter many applications before arriving at a shortlist for interview. The Court of Appeal referred particularly to unskilled and semi-unskilled work. Mr Singh’s work is skilled but he is at an early stage of his career, having completed his studies relatively recently, and I am willing to assume convictions for violent offending would count against him.
14 New Zealand Police v Singh, above n 1, at [9].
15 At [9].
16 R v Taulapapa, above n 3.
[34] Accordingly, I consider there is a real and appreciable risk that any application Mr Singh may make for future employment would be adversely affected by the convictions.
[35] The third consequence relied upon is Mr Singh’s immigration status. Mr Singh filed in the District Court an affidavit from Mr Moses, a specialist immigration lawyer. The gist of Mr Moses’ evidence is that Mr Singh becomes liable for deportation if convictions for this offending are entered. The convictions are likely to come to the attention of Immigration New Zealand, who will investigate and refer the matter to the Minister of Immigration. Mr Moses considers that Mr Singh, if adequately represented, would have “reasonable prospects” of persuading the Minister to suspend deportation on condition he not reoffend. Reasonable prospects denotes a reasonably arguable, but not strong or overwhelming, case.
[36] Absent suspension of deportation, Mr Moses states Mr Singh would have a right of appeal to the Immigration and Protection Tribunal (“IPT”). Mr Moses states Mr Singh would have reasonable prospects of succeeding before the IPT provided that his “relationship with Z remains strong and she supports his appeal”.
[37] Mr de Groot submits that Mr Moses’ evidence discloses a real and appreciable risk of deportation and all the consequences of that, including separation from his child.
[38] I accept Mr de Groot’s submission. I also accept that, even if Mr Singh were not ultimately deported, he and Z would be subject to a protracted period of stress and uncertainty, and significant financial cost.
[39] I accept Ms Guilford’s submission that there are many cases in which the Court has declined to usurp the function of the immigration authorities. Equally, however, there are cases in which the Court has taken into account such consequences in its overall assessment of whether the consequences of a conviction would be out of all proportion to the gravity of the offending.17
17 Chand v Police [2017] NZHC 2188; R v Kumar [2015] NZHC 3293; and Jeon v Police [2014] NZHC 66.
Conclusion on consequences
[40] I am satisfied the entry of convictions for this offending creates a real and appreciable risk to any application for employment Mr Singh may make in the future and to his immigration status. Even if deportation is avoided, Mr Singh and those closest to him will be subject to a protracted period of uncertainty and stress. I record also — given the evidence from Mr Moses referred to in [36] above — that it is for Mr Singh and Z to determine the nature of their future relationship. Mr Singh’s future in New Zealand should not depend on their continued relationship. That would be unfair to both.
[41] I consider these consequences of conviction out of all proportion to the gravity of the offending, in the sense required.
Result
[42] I allow this appeal and, pursuant to s 106(1) of the Sentencing Act 2002, discharge Mr Singh without conviction on the charges of assault with intent to injure and male assaults female.
Peters J
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