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Singh v The the Queen

Singh v The the Queen

Case [2022] NZCA 23 21 February 2022

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA547/2021
[2022] NZCA 23

BETWEEN	JASWINDER JASS SINGH Appellant
AND	THE QUEEN Respondent

Hearing:	14 February 2022
Court:	Kós P, Peters and Palmer JJ
Counsel:	A Osama and S McKenna for Appellant H D L Steele and D S Houghton for Respondent
Judgment:	21 February 2022 at 10 am

JUDGMENT OF THE COURT

A The application to adduce fresh evidence is granted.
B The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Palmer J)

What happened?

Mr Jaswinder Singh, aged 28, was part of a SIM-swapping scheme. Others co‑opted phone numbers and accessed the bank accounts of unsuspecting victims. Money was transferred into accounts operated by people known as “primary mules”. Then “secondary mules”, including Mr Singh, would withdraw cash from those accounts in smaller amounts. Mr Singh made or attempted to make 20 transactions in total, on 6 December 2019, 20 December 2019 and 3 February 2020. He acquired $23,000, which he was to pass on. Mr Singh did not know the primary mules. He suspected something untoward was going on. The Department of Corrections reports that Mr Singh said he was given $500 “maybe once or twice for making these transactions”.
Mr Singh pleaded guilty to a representative charge of dishonestly using a document under s 228(1)(b) of the Crimes Act 1961. He applied for a discharge without conviction. On 30 July 2021, in the District Court at Auckland, Judge E M Thomas declined the application.[1] He held:
(a)The offending carries a maximum penalty of seven years’ imprisonment, involved repeat offending and there was a significant sum of money involved.[2] Both parties referred to a potential starting point of 18 months’ imprisonment.[3] Mr Singh’s circumstances reduced the gravity of the offending to “somewhere around the high end of low or the low end of moderate” because of his: lack of previous convictions; otherwise good character; genuine remorse; guilty plea; and willingness to make reparation.[4]
(b)There was no evidence Mr Singh’s employment as a personal assistant was in jeopardy, given his employer’s support of him.[5] Mr Singh’s risk of deportation and ability to have his essential skills work visa renewed was an issue for immigration officials with which the Court would not ordinary get involved.[6]
(c)Accordingly, the direct and indirect consequences of conviction were not out of all proportion to the gravity of the offending.[7]
[1]R v Singh [2021] NZDC 15371 at [13].
[2]At [6].
[3]At [7].
[4]At [8]–[9].
[5]At [10].
[6]At [11].
[7]At [13].
Mr Singh was convicted and sentenced to 12 months’ supervision and to pay reparation of $23,000.[8]
[8]At [16]–[17].
Mr Singh appeals the District Court’s decision to decline his application for discharge without conviction.

Fresh evidence

Mr Singh seeks leave to file fresh evidence by way of affidavits by: himself; an immigration expert, Mr Simon Laurent; and his employer. The Crown does not object to the first two but does object to the employer’s affidavit which it submits…

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 23
Case: [2022] NZCA 23
Decision Date: 21 February 2022 at 10 am

CaseChat Overview and Summary

The appeal in Singh v The Queen concerns the decision of the District Court to decline Jaswinder Singh's application for discharge without conviction. Mr Singh was involved in a SIM-swapping scheme, where others accessed the bank accounts of unsuspecting victims. Money was transferred into accounts operated by primary mules, and secondary mules, including Mr Singh, withdrew cash in smaller amounts. He made or attempted to make 20 transactions in total, acquiring $23,000, which he was to pass on. Mr Singh pleaded guilty to dishonestly using a document under s 228(1)(b) of the Crimes Act 1961. He applied for a discharge without conviction, which was declined by Judge E M Thomas. The appeal focuses on whether the District Court's decision was wrong, and if the direct and indirect consequences of Mr Singh's conviction are out of all proportion to the gravity of his offending.

The Court of Appeal considered the gravity of Mr Singh's offending, the consequences of conviction, and whether the latter are out of all proportion to the former. The Court agreed with the Judge that the gravity of Mr Singh's offending lies towards the high end of low. While Mr Singh's cooperation with the police is relevant to his sentence, it is not relevant to the issue of discharge. The Court understood that Mr Singh will likely be deported if his conviction stands and may not have his visa renewed. However, the Court found that the consequences of deportation for Mr Singh do not involve separation from family as would have occurred in other cases where appeals were allowed. The Court did not consider the Judge erred, and the consequences of Mr Singh's conviction are not out of all proportion with the gravity of his offending.

The appeal was dismissed, and the Court of Appeal upheld the District Court's decision. The Court did not consider the consequences of Mr Singh's conviction to be out of all proportion with the gravity of his offending, and the appeal was dismissed accordingly.

Orders