Singqandu v Police
[2025] NZHC 270
•24 February 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000511
[2025] NZHC 270
BETWEEN LINDA ROBERT SINGQANDU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 February 2025 Appearances:
M Goodwin and N S Gounder for Appellant C Hodgson for Respondent
Judgment:
24 February 2025
ORAL JUDGMENT OF LANG J
[appeal against sentence]
Solicitors/counsel:
Meredith Connell, Office of the Crown Solicitor, Auckland M Goodwin, Auckland
SINGQANDU v POLICE [2025] NZHC 270 [24 February 2025]
[1] Mr Singqandu pleaded guilty in the District Court to a variety of charges including driving whilst disqualified, driving with excess blood alcohol and unlawful use of a motor vehicle.
[2] On 21 August 2024, Judge A M Manuel sentenced Mr Singqandu to 25 months imprisonment.1 Mr Singqandu appeals against the sentence on the basis that several errors in the sentencing process led the Judge to impose a sentence that was manifestly excessive.
The charges
[3] The charges were laid as a result of three separate incidents, two of which occurred in February and April 2022 and the third of which occurred in April 2023.
[4] On 2 February 2022, the police stopped Mr Singqandu’s vehicle because it had faulty lights. Enquiries on the police database revealed that he was driving whilst disqualified. He had been indefinitely disqualified from driving after he was sentenced on a range of driving-related charges in November 2018. The offending on 2 February 2022 led to a charge of driving whilst disqualified.2
[5] Approximately three months later, on 29 April 2022, the police stopped Mr Singqandu whilst he was driving on a suburban street in the early hours of the morning. The police again found that he was driving whilst disqualified. They also administered breath and blood testing procedures and the latter returned a positive evidential result of 223 milligrams of alcohol per 100 millilitres of blood. Mr Singqandu has previous convictions for similar offending. This incident therefore led to charges of driving with excess blood alcohol in its aggravated form3 and driving whilst disqualified.4
1 Police v Singqandu [2024] NZDC 20192.
2 Land Transport Act 1998, s 32(1)(a) and (3) — maximum penalty three months’ imprisonment or
$4,500 fine and a mandatory minimum of six months’ disqualification from holding a driver licence.
3 Sections 56(2) and (4) — maximum penalty two years’ imprisonment or $6,000 fine and a mandatory minimum of one year disqualification from holding a driver license.
4 Section 32(1)(a) and (3), above n 2.
[6] On 7 April 2023, Mr Singqandu was driving a stolen motor vehicle in Otahuhu. He tried to evade a police check point and in doing so collided with a raised traffic island. This caused his vehicle to become airborne and enter a nearby street on the wrong side of the road. He then stopped his vehicle in the driveway of a residential address and endeavoured to run away. The police found him hiding in a nearby driveway. This incident led to charges of unlawfully using a stolen vehicle,5 careless use of a motor vehicle6 and driving whilst disqualified in its aggravated form.7
[7] Mr Singqandu also pleaded to two charges of breaching District Court bail after he failed to appear in the District Court when required to do so on two occasions.8
The sentence
[8] The Judge took the lead charge to be that of unlawfully using a motor vehicle on 7 April 2023. She adopted a starting point of 18 months imprisonment on all charges arising out of the incident that occurred on that date and then applied an uplift of 12 months to reflect the offending that occurred on 29 April 2022.
[9] The Judge then added an uplift of four months to reflect the remaining charges, together with an uplift of two months to reflect the fact that the offending on 7 April 2023 occurred whilst Mr Singqandu was on bail awaiting trial on the earlier charges.
[10] From the resulting sentence of 36 months imprisonment, the Judge applied discounts of 12.5 per cent each to reflect guilty pleas and factors personal to Mr Singqandu. These included difficulties he had experienced in his upbringing and whilst he was performing military service in South Africa.
[11] This led the Judge to deduct 25 per cent from the starting point of 36 months imprisonment. This exercise ought to have produced a sentence of 27 months imprisonment. However, it is common ground that a mathematical error led the Judge
5 Crimes Act 1961, ss 246 and 247(a) — maximum penalty seven years’ imprisonment.
6 Land Transport Act 1998, s 37(1) — maximum penalty $3,000.
7 Section 32(1)(a) and (4) — maximum penalty two years’ imprisonment or $6,000 fine and a mandatory minimum of one year disqualification from holding a driver licence.
8 Bail Act 2000, s 38(a) — maximum penalty one year imprisonment or $2,000 fine.
to impose a final sentence of 25 months imprisonment. She also imposed a global disqualification of 36 months and imposed a zero-alcohol licence. Those orders are not relevant for present purposes.
The appeal
[12] On Mr Singqandu’s behalf, Mr Goodwin advances three submissions in support of his argument that the end sentence was manifestly excessive. First, he contends the Judge was wrong to take the charge of unlawfully using a motor vehicle on 7 April 2023 as the lead, or most serious, charge. He also submits that the end starting point of 36 months imprisonment on all charges was manifestly excessive. Finally, he contends that the Judge ought to have applied a greater discount to reflect mitigating factors. These include factors identified in a psychologist’s report that Mr Goodwin now tenders in support of the appeal.
The starting point
[13] Mr Goodwin accepts that the charge of unlawfully using a motor vehicle carried a maximum sentence of seven years imprisonment. None of the other charges carried a maximum sentence of more than two years imprisonment. Mr Goodwin therefore accepts that, in terms of the maximum sentence available, the charge of unlawfully using a motor vehicle had a significantly greater maximum penalty than those available for the offending that occurred in 2022.
[14] However, Mr Goodwin points out that, although the charge of driving with excess blood alcohol carried a maximum penalty of just two years imprisonment, it was Mr Singqandu’s ninth conviction for this type of offending. His blood alcohol reading was very high. Mr Goodwin therefore contends the Judge ought to have selected this charge as the lead charge. He says the Judge ought to have selected a starting point of around 13 months imprisonment on that charge and then added an uplift of no more than six months to reflect the remaining charges. This would have resulted in a sentence of 19 months imprisonment before taking into account mitigating factors personal to Mr Singqandu.
[15] Mr Goodwin’s submission regarding selection of the lead charge needs to be considered in light of the fact that this issue should not generally make any difference to the ultimate outcome when sentences are imposed for offending arising out of several separate incidents. The structure of the sentence is immaterial. What matters is the end sentence, regardless of whether this is achieved by concurrent or cumulative sentences. The guiding principle is that the end sentence must not be out of all proportion to the overall culpability of the offending.
[16] In the present case, I consider the overall circumstances of the offending that occurred on 7 April 2023 were the most serious of the three sets of charges. First, it involved Mr Singqandu getting into and driving a stolen motor vehicle. Secondly, he engaged in driving manoeuvres that were at the upper end of the scale in terms of carelessness. These were not the product of a momentary lapse of attention as is so often the case when the crime of careless driving is committed. Rather, they took place as Mr Singqandu was actively endeavouring to evade a police check point. In addition, Mr Singqandu has already received the benefit of the police reducing the charge from reckless driving to careless driving. I consider the events described in the summary of facts would easily have supported a charge of reckless driving. In addition, the offending involved the offence of driving whilst disqualified in its aggravated form, which on its own carries a starting point of two years imprisonment. Finally, the offending occurred whilst Mr Singqandu was already on bail on the earlier charges.
[17] Taking all these factors into account, I do not consider a starting point of 18 months imprisonment was outside the available range for the offending that occurred on 7 April 2023.
[18] The offending that occurred on 29 April 2022 did not involve issues with the manner in which Mr Singqandu was driving. However, it involved him again driving whilst disqualified. Further, it resulted in Mr Singqandu’s ninth conviction since 2006 for driving with excess breath or blood alcohol. He also has a conviction for failing to provide a sample of his breath or blood. Taking those factors into account, it is clear that an uplift was required. However, the most significant penalty Mr Singqandu has received in the past for offences involving driving with excess breath or blood alcohol is a sentence of 10 months home detention imposed in 2013. I therefore consider an
uplift of no more than six months was required to reflect the charge of driving with excess blood alcohol. However, that needs to be increased to reflect the fact that Mr Singqandu was again driving whilst disqualified. I would therefore add a further uplift of two months to reflect that factor, meaning that the offending on 29 April 2022 would attract a total uplift of eight months imprisonment, taking into account totality principles.
[19] This leaves the remaining charges of failing to answer District Court bail and the charge of driving whilst disqualified on 2 February 2022. I do not consider these charges would warrant an uplift of more than two months imprisonment. It follows that the appropriate sentence to be imposed on Mr Singqandu was one of 28 months imprisonment, even taking into account the aggravating factor that the offending on 7 April 2023 occurred whilst he was on bail.
Discount for mitigating factors
[20] As I have already noted, the Judge applied discounts of 12.5 per cent each to reflect guilty pleas and others factors personal to Mr Singqandu. Mr Goodwin takes no issue with the discount applied for guilty pleas. However, he contends the Judge ought to have applied a discount of up to 25 per cent to reflect factors identified in a psychologist’s report that he now tenders as fresh evidence.
[21] The evidence cannot be regarded as fresh because, with due diligence, counsel who appeared for Mr Singqandu at sentencing could have obtained the report before Mr Singqandu was sentenced. However, the respondent accepts that the contents of the report are credible and could potentially affect the level of discount to be applied. In those circumstances, the respondent does not oppose admission of the report and I admit it accordingly.
[22] I consider, however, that the report largely amplifies factors that were known to the Judge at sentencing. These include violence that Mr Singqandu witnessed and experienced in his home environment whilst growing up. However, it is difficult to see how these could have any causal connection with most of the events giving rise to the present charges.
[23] A factor of greater relevance for present purposes is the effect on Mr Singqandu of the extremely harsh conditions under which he was required to perform military service over a lengthy period in South Africa and the traumatic experiences that he suffered as a result. This has now led to a diagnosis of post-traumatic stress disorder (PTSD). The psychologist also considers that it has led directly to his longstanding dependence on alcohol as a coping mechanism. This means his past experiences have contributed to those aspects of the present offending that relate to the use of alcohol. The only charge to which this factor could relate is the charge of driving with excess blood alcohol because alcohol did not play a part in any of the remaining charges. It is also difficult to see how PTSD could contribute to the charges other than driving with excess blood alcohol.
[24] I therefore consider the factors identified in the psychologist’s report could only have affected the sentence imposed on the charge of driving with excess blood alcohol. I take the view that the guilty pleas should attract a discount of 3.5 months from the starting point I have identified. I consider the factors identified in the pre- sentence and psychologist’s report should attract a discount of 4.5 months. This means I consider an appropriate overall discount to reflect mitigating factors is one of eight months.
Result
[25] The appeal is accordingly allowed. I reduce the sentence imposed on the lead charge of unlawfully using a motor vehicle to one of 20 months imprisonment. The sentences imposed on the remaining charges remain intact, as do the orders made in relation to disqualification and the zero-alcohol licence.
Lang J
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