Singh v The the Queen - [2022] NZCA 261

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA684/2021
[2022] NZCA 261

BETWEEN	SATNAM SINGH Appellant
AND	THE QUEEN Respondent

Hearing:	7 June 2022
Court:	Gilbert, Mander and Fitzgerald JJ
Counsel:	E J Forster for Appellant J Mara for Respondent
Judgment:	22 June 2022 at 9 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mander J)

Mr Satnam Singh was convicted by a jury of sexual offending against a young person. He was sentenced by Judge R J Collins in the Napier District Court to nine year’s imprisonment.[1] He appeals his sentence, out of time, on the sole basis he should have been afforded a discount for his inevitable deportation following his release from prison.
[1]R v Singh [2021] NZDC 18572.
Mr Singh’s lateness in filing his appeal arises from communication difficulties with the prison. In the circumstances, the Crown does not oppose the application to appeal out of time and leave is granted.

Background

Over the course of a seven-month period, Mr Singh, a 27-year-old man, engaged in sexual offending against a 14-year-old teenager with whom he developed a relationship. He committed multiple indecent acts on the complainant that escalated to offences of unlawful sexual connection and rape. In total Mr Singh was found guilty of 18 charges of sexual offending against this young complainant.
In sentencing Mr Singh, the Judge identified the charge of rape as the lead offence.[2] The Judge found that charge alone could have resulted in a starting point in excess of seven or eight years.[3] Considering the balance of the offending, the Judge adopted an overall starting point of nine years’ imprisonment.[4] Manipulation of the complainant’s emotions, breach of trust, and the complainant’s vulnerability as a result of her age and personality were identified as aggravating features.[5] The Judge did not consider there were any mitigating factors so the nine-year starting point was imposed as the final effective sentence.[6]
[2]At [25].
[3]At [26].
[4]At [30].
[5]At [28].
[6]At [31]–[32].
The Judge declined “by a very narrow margin” to impose a minimum period of imprisonment.[7] After noting that Mr Singh’s release would be for the Parole Board to determine after the expiry of one-third of his sentence, the Judge observed he had no doubt Mr Singh would be deported from New Zealand.[8]
[7]At [33].
[8]At [34].
Mr Singh is unlawfully in New Zealand. He does not hold a valid visa and has been served with a deportation notice.[9]

The appeal

[9]Immigration Act 2009, s 154.

Mr Forster, counsel for Mr Singh, argued the sentence of imprisonment was manifestly excessive because no discount was applied for Mr Singh’s liability for deportation following release from prison. This, it was argued, resulted in a disproportionately severe sentence. Mr Forster relied upon two decisions of this Court which he submitted supported his argument that an offender’s prospective deportation should…

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 the Queen

Details

AGLC: Singh v The the Queen [2022] NZCA 261
Case: [2022] NZCA 261
Decision Date: 22 June 2022 at 9 am

CaseChat Overview and Summary

Satnam Singh appealed his nine-year imprisonment sentence for multiple counts of sexual offending against a 14-year-old, arguing the sentence was excessively severe because it did not account for his inevitable deportation following his release from prison. The Court of Appeal of New Zealand heard the appeal and was required to determine whether the appellant's deportation should have resulted in a discount on his sentence. Singh's counsel argued that deportation should result in a sentence reduction and relied on two previous Court decisions that supported his argument. The Crown, on the other hand, maintained that the weight of authority shows that immigration consequences of offending are generally irrelevant to sentencing. The Court held that while the deportation of an offender is not intrinsically a relevant sentencing consideration, a sentencing court must take into account any particular circumstances of an offender that would render a sentence disproportionately severe. The Court found that there was no basis to conclude Singh would suffer any greater hardship from the loss of the opportunity to live and work in New Zealand than would otherwise be anticipated as a result of a person in his position being convicted of serious sexual offending. The repercussions of deportation did not require his sentence to be adjusted in order to avoid it being disproportionately severe. The appeal was dismissed, and leave to appeal out of time was granted.

Orders