Solicitor-General v Singh
[2017] NZHC 255
•23 February 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2017-406-000001 [2017] NZHC 255
BETWEEN SOLICITOR-GENERAL
Applicant
AND
SATINDER SINGH Respondent
Hearing: 21 February 2017 Appearances:
M Cooke for Applicant
R A Harrison for RespondentJudgment:
23 February 2017
JUDGMENT OF COLLINS J
Introduction
[1] This judgment explains why I am dismissing the Solicitor-General’s application for leave to appeal a decision of Judge Ruth delivered in the Blenheim District Court on 6 December 2016. In his decision Judge Ruth discharged Mr Singh without conviction in relation to one charge of assault1 and one charge of wounding
with intent to injure.2
Background
[2] On the evening of 24 March 2016 Mr Singh was at a Blenheim address with a group of friends. He and others at the address were drinking. Mr Singh and the victim consumed a very significant quantity of alcohol.3 At about 12.10 am
1 Summary Offences Act 1981, s 9, maximum penalty six months’ imprisonment or a fine not
exceeding $4,000.
2 Crimes Act 1961, s 188(2), maximum penalty seven years’ imprisonment.
3 There is evidence Mr Singh and the victim had consumed two bottles of whisky and were starting on a third bottle.
SOLICITOR-GENERAL v SINGH [2017] NZHC 255 [23 February 2017]
Mr Singh and the victim were both sitting on a couch when they became engaged in a verbal argument. During the argument Mr Singh stood up and approached the victim slapping him one in the face using his right hand. The victim stood up believing he was going to be struck again and went to slap Mr Singh. However, before the victim was able to slap Mr Singh, Mr Singh shoved him in the chest. The victim fell backwards onto the couch. Mr Singh then got on top of the victim and the two began to struggle. During the struggle they rolled off the couch onto the floor with Mr Singh still on top of the victim. While the victim was lying on his back Mr Singh bit the victim once on his nose. The force of the bite caused the victim’s nose to split. The victim suffered a severe laceration and a large portion of flesh was separated from his nose. Other people came into the room and removed Mr Singh from the address. Police were called and located Mr Singh a short time later.
[3] The victim is a 37 year old self-employed man working in a vineyard. He
was “extremely shocked by [the] assault”.4
[4] As a result of the assault the victim had surgery to his nose. He spent two nights in hospital. He also had a tooth displaced and suffered bruising to his face. He was unable to work for two weeks.
[5] Mr Singh was also taken to hospital. He declined to make a statement when spoken to by the Police. At the time of the offending Mr Singh was 21 years old. He had come to New Zealand from India in February 2014 on a work visa which expired in November 2016. During his time in New Zealand Mr Singh completed a national certificate in cooking and was employed at a café as a chef. He has an application before Immigration New Zealand to have his work visa renewed. Mr Singh has no previous convictions.
Sentence indication
[6] Mr Singh was initially charged with common assault, assault with a weapon and wounding with intent to cause grievous bodily harm. He sought a sentence
4 Victim Impact Statement.
indication on the basis that the charge of assault with a weapon would be removed and that the charge of wounding with intent to cause grievous bodily harm would be replaced with the lesser charge of wounding with intent to injure.
[7] In his sentence indication Judge Ruth considered a starting point of two
years’ imprisonment was appropriate. He reduced that indicative sentence down to
20 months to take account of Mr Singh’s lack of previous convictions and his youth. He then applied a further discount of five months (25 per cent) to reflect guilty pleas, leaving Mr Singh well within the range of a sentence for home or community detention. Judge Ruth said:5
But in any event, I also acknowledge that I should not reach a firm end point because I leave open the possibility that restorative justice might well create or divulge further matters for which you might get credit or which might impact on the way the matter is finally disposed of.
Restorative justice
[8] On 16 September 2016 Mr Singh attended a restorative justice conference with the victim. The report written after that conference records Mr Singh apologised to the victim who accepted the apology as being genuine. The victim said he wanted the charges against Mr Singh to be dropped and that he had “no ill feelings” towards Mr Singh.
[9] A restorative justice plan was put in place. As at 15 November 2016 the following features of the plan had been completed:
(1) Mr Singh had paid $2,000 reparation / emotional harm to the victim.
(2) Mr Singh had attended an alcohol and drug assessment programme.
He had also attended one alcohol counselling session and had made a further appointment. The counsellor reported Mr Singh engaged well with the programme.
(3)Mr Singh had attended an anger management assessment and counselling education programme. The facilitator considered that the
5 R v Singh DC Blenheim CRI-2016-042-000324, 24 August 2016.
incident was alcohol induced and that there were no outstanding anger issues for Mr Singh to address.
[10] On 6 December 2016 Mr Singh’s application to be discharged without conviction pursuant to s 106 of the Sentencing Act 2002 (the Act) was heard and granted by Judge Ruth.
Evidence before the District Court
[11] The following evidence was before Judge Ruth in relation to the s 106 discharge without conviction application:
(1)Mr Singh’s affidavit sworn on 15 November 2016. Mr Singh referred to his completion of the national certificate in cooking levels three and four and his work at a café as a chef. He said he wanted to obtain another two year work visa to get more experience in New Zealand. He referred to the possibility of deportation and the difficulty of gaining future employment in Europe.
(2)An alcohol and drug use assessment. The assessor reported Mr Singh had drunk excessive amounts of alcohol the night of the offending. He said Mr Singh would meet criteria for alcohol abuse. He noted however that Mr Singh’s first experience of drinking alcohol was when he moved to New Zealand and he had since the date of the offending not consumed alcohol and did not see himself drinking alcohol again.
(3)An immigration officer statement. An immigration compliance officer for Immigration New Zealand outlined Mr Singh’s work visa applications. The immigration officer said a criminal conviction did not automatically make Mr Singh ineligible for a work visa renewal but would mean his application would be declined unless the immigration officer considered that a character waiver was appropriate. If Mr Singh was discharged without conviction, a character waiver assessment would not be required but the incident
could still be taken into account by the immigration officer considering his application.
(4)A pre-sentence report, 16 September 2016. The report-writer recommended a sentence of supervision (with special conditions to attend an alcohol and drug assessment and an anger management programme) and community work. Mr Singh was assessed as a medium risk of harm to others based on the harm experienced by the victim but he was regarded as being motivated to get his life back on track. The report-writer noted Mr Singh’s genuine remorse.
[12] The restorative justice report and victim impact statement were also before
Judge Ruth.
District Court decision
[13] Judge Ruth summarised the procedural background to the case, including the earlier sentence indication where an end point of about 14 months’ imprisonment6 had been reached but the final outcome had been left “open”.7 The Judge went on to summarise the evidence before him and the approach to considering discharges without conviction.
[14] Judge Ruth then turned to the immigration issue. He referred to the statement of the immigration officer and acknowledged a conviction would not automatically bar Mr Singh from a visa renewal, but the application would be declined unless the immigration officer considered a character waiver was appropriate. He said this would require “more effort” on Mr Singh’s part and the onus would rest on him to satisfy the immigration service of his suitability to hold a work visa. He considered the status of the risk to deportation, and career aspirations, would be “heightened” by
a conviction.8
6 Although Judge Ruth referred to 14 months this was an error. He should have said 15 months.
7 Police v Singh [2016] NZDC 24726 at [4].
8 At [14].
[15] Judge Ruth accepted it is not for the court to take over the role of the immigration service by making decisions which usurp their statutory role. He went on to say it is, however, open to the Court to take into account, in considering a discharge application, the fact that the path to what is being attempted is made harder or presents some substantial bar.
[16] The restorative justice report and victim’s views were then outlined. Judge Ruth referred to the victim having “a rather different view” of the night than perhaps was reflected within the summary of facts. He says the victim did not want Mr Singh to be convicted and “clearly takes equal responsibility with [Mr Singh] for
what happened to him”.9 Mr Singh’s apology and restorative justice steps were also
acknowledged.
[17] In relation to the gravity of the offending, Judge Ruth said:10
I have to bear in mind that this was a serious wounding, and that the original term “disfigurement” probably captures rather more graphically what happened than the word “wounding” does, however, I deal with the matter on the basis of the charge as it currently stands.
…
The gravity then, although it is a serious charge as Mr Harrison rightly acknowledges on your behalf, has been reduced so that the available penalty against you has reduced by one-half. I have to take that into account.
Secondly, given the outcome of the restorative justice process, I think I am entitled to view the matter not as trivial but not nearly so serious as at first blush it did seem. I also have to take into account I think what you have done post the offending, which is a good deal to put matters right … So I think I can regard it in that low to moderate seriousness category, notwithstanding the serious nature of the charge even in its amended form.
[18] The Judge then considered the consequences upon Mr Singh of entering a conviction for these matters. He said:11
Here the impact on you seems to be partly employment-based, partly immigration-based, and I think I can take the view, although by a pretty fine margin I have got to tell you, that the consequences for you do seem to outweigh the actual gravity of the offending as I find it to be.
9 At [19].
10 At [20], [23]-[24].
11 Police v Singh, above n 7, at [27].
[19] In those circumstances and after acknowledging the reparation and the steps taken to avoid re-offending, Mr Singh was discharged without conviction.
Grounds of appeal
[20] The Solicitor-General poses the following four questions of law:
(1) Did Judge Ruth err in assessing the gravity of the offending?
(2)Did Judge Ruth err in failing to have regard to the general principle that as a matter of public interest a sentencing Judge ought not usurp the function of the immigration authorities?
(3)Did Judge Ruth err in his assessment of the weight to be given to the potential consequences of a conviction?
(4)Did Judge Ruth err in finding that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence?
The Law
Appeals on questions of law
[21] For leave to be granted under s 296(2) of the Criminal Procedure Act 2011 the Solicitor-General must identify an arguable question of law. The Court of Appeal identified three standard forms of error of law in Brown v R:12
(1) a misdirection of law apparent in the decision;
(2) oversight of a relevant matter, or consideration of an irrelevant matter;
or
12 Brown v R [2015] NZCA 325 at [16].
(3)a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.
Discharges without conviction
[22] The discretion to discharge without conviction under s 106 of the Act is fettered by the mandatory test prescribed by s 107 of the Act:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[23] The Court of Appeal has explained the approach to applications under s 106 is as follows:13
(1)First, the Court should consider the gravity of the offence. This involves the Court considering all the aggravating and mitigating factors relating to the offending and the offender.
(2)Second, the Court should then identify the direct and indirect consequences of conviction for the defendant. This involves the Court evaluating all relevant information. It is sufficient if the Court is satisfied that there is a “real and appreciable risk” that the consequences will occur.
(3)Third, the Court must consider whether the consequences are out of all proportion to the gravity of the offence.
(4)Fourth, if the Court determines that the consequences of a conviction are out of proportion to the gravity of the offence, it must still consider whether it should exercise its discretion under s 106 to grant
a discharge without conviction. Rarely, will the court not do so.
13 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27] and DC (CA47/2013) v R [2013] NZCA 255 at [35].
Analysis
First alleged error of law
[24] Ms Cooke, counsel for the Solicitor-General submitted Judge Ruth erred in assessing the gravity of the offending as “low to moderate”.14 It was argued that even taking into account mitigating factors, the gravity of the offence was moderate to serious. The charge faced was serious and the assault resulted in significant injury to the complainant.
[25] Ms Cooke said that the reduction in the charge from that originally faced ought not to have been taken into account by Judge Ruth. In addition the Judge allegedly erred in elevating the victim’s role in the offending and in reaching a conclusion the victim took equal responsibility for what happened.15 Finally Ms Cooke submitted under this ground that the Judge gave undue weight to the victim’s view that he did not want Mr Singh to be convicted.16
[26] After referring to the factors in Nuku v R17 Judge Ruth set a starting point of two years for Mr Singh’s offending.18 This was at the lower-mid range of band two of Nuku. Although the injury suffered was serious, there are few aggravating features in this case. Aside from the victim’s injuries, the only aggravating feature
was that the victim was in a vulnerable position at the time he was bitten. The offending was not premeditated, there was one incident of biting and there was no weapon involved.
[27] While Judge Ruth referred to the reduced charge, he also properly said that he dealt with the matter on the basis of the charge as it currently stood.19 That comment alleviates any concerns that Judge Ruth placed undue weight on the fact the primary
charge had been reduced.
14 Police v Singh, above n 7, at [23].
15 At [19].
16 Citing R v Taueki [2005] 3 NZLR 372 (CA) at [33](b); R v Clotworthy (1998) 15 CRNZ 651 (CA) at 659 and R v Iona CA416/02, 27 March 2003 at [23].
17 Nuku v R [2012] NZCA 584.
18 R v Singh, above n 5, at [13].
19 At [20].
[28] The main issue under this heading is the weight Judge Ruth gave to mitigating factors and whether it can be said that the overall offending was “low to moderate”. During the sentence indication Judge Ruth applied the following discounts for lack of previous convictions, youth and guilty pleas:
(1) lack of previous convictions20 and youth21 (four months); and
(2) guilty pleas22 (25%).
[29] Following the sentencing indication, further discounts could also have been
applied to reflect Mr Singh’s:
(1)participation in the restorative justice programme, reparation and remedial action 23 (six months); and
(2) his genuine remorse24 (two months).
[30] Taking a purely mathematical approach, that would produce a final sentence of nine months’ imprisonment, which is within the range of a low to moderate level of severity of offending.
[31] While the significance of the charge and the victim’s injuries was properly emphasised by Ms Cooke, Mr Singh’s personal mitigating factors alongside the steps he took to make amends are significant. Accordingly, after careful consideration, I think it was open to Judge Ruth to consider the overall offending was in the low to moderate category of seriousness.
[32] A problematic feature of Judge Ruth’s decision however is the way he placed weight on the victim’s role in the offending and the victim’s views about Mr Singh
being convicted. In particular, the Judge’s comment that the victim “takes equal
20 Sentencing Act 2002, s 9(2)(g).
21 Section 9(2)(a).
22 Section 9(2)(b).
23 Sentencing Act 2002, s 10.
24 Section 9(2)(f).
responsibility with [Mr Singh] for what happened to him” was not a completely
accurate reflection of the evidence.
[33] The views of the victim are not to be ignored, but do not outweigh the public interest.25 Despite his references to the victim’s role in the offending, the overall focus of Judge Ruth was on the restorative justice process. He noted that the victim’s views on discharging without conviction Mr Singh “are not a matter for him to comment upon”.26 More importantly, I do not think the Judge goes so far as to place undue weight of the victim’s views in his final assessment of the gravity of the offending.
[34] Notwithstanding my concerns about aspects of the way in which Judge Ruth expressed himself, I am satisfied he committed no error or law in relation to his assessment of the gravity of the offending. While I may have considered the overall offending to be closer to “moderate” an assessment of the offending being low to moderate was a conclusion that was reasonably available to Judge Ruth.
Second alleged error of law
[35] Ms Cooke submitted there is a well-established principle that where there is a risk of deportation the Court should not usurp the function of the immigration authorities. It is said that there is a clear public interest in Mr Singh needing to go through the character waiver process as described in the immigration officer’s statement. In these circumstances, it is contrary to principle, and an error of law, to in effect, “cover up” Mr Singh’s offending so as to prevent the immigration authorities from exercising their function.
[36] Ms Cooke referred to authorities in relation to the approach to immigration consequences27 and employment consequences.28 The central point was summarised
by Brewer J in George v Police in the following way:29
25 R v Taueki, above n 16, at [33](b).
26 Police v Singh, above n 7, at [19].
27 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14]; Solicitor-General v Mohib [2016] NZHC 1908 and Jeon v Police [2014] NZHC 66 at [20].
28 Maraj v Police [2016] NZCA 279 at [28]; Roberts v Police (1989) 5 CRNZ 34 (HC) at [36] and
Graves v Police HC Rotorua CRI-2010-463-57, 28 February 2011.
… in the usual run of cases, the Court should not take it upon itself to, in effect, decide immigration status.
[37] The Judge said he was not usurping the role of the immigration authorities but considered the path to stay in New Zealand was “harder” for Mr Singh if he were convicted.30 The immigration officer’s statement that the immigration authorities would be able to take into account the facts of the case resolves any concern of the Court having usurped the functions of the immigration authorities. This was not a case in which there was any effort made to suppress information about Mr Singh’s offending from Immigration New Zealand.
Third alleged error of law
[38] Ms Cooke submitted Judge Ruth erred in his assessment of the weight to be given to the potential consequences of a conviction. It is said Judge Ruth’s conclusion in identifying the consequences of a conviction “are somewhat opaque”.
[39] In terms of the immigration consequences, Ms Cooke accepted Judge Ruth appreciated that deportation was not an absolute or inevitable consequence of conviction in this case. Ms Cooke submitted however that given the speculative impact of a conviction on Mr Singh’s visa application and the prospects of him staying in New Zealand, Judge Ruth placed undue weight on the risks of Mr Singh not being allowed to stay in New Zealand.
[40] Ms Cooke referred to Ho v R, where it was explained that deportation alone does not amount to a disproportionate consequence of a conviction.31
[41] In terms of employment consequences, Ms Cooke submitted there was no evidential foundation to support the finding that a conviction would have an impact on Mr Singh’s employment prospects as a chef. She referred to Mr Singh’s former employer having said prior to sentencing that he did not support Mr Singh’s work
visa renewal application.
29 George v Police [2014] NZHC 1725 at [46].
30 Police v Singh, above n 7, at [15].
31 Ho v R [2016] NZCA 229 at [15].
[42] This proposed ground of appeal raises the most concern.
[43] A consequence of conviction involves the court evaluating all of the relevant evidence to identify whether there exists “a real and appreciable risk” that the alleged adverse consequence will occur. The immigration officer’s statement makes it clear that a character waiver would be required for Mr Singh upon conviction to obtain a work visa. This is a barrier to Mr Singh obtaining a work visa and constitutes a “real risk” of deportation. In turn, deportation would inevitably mean Mr Singh lost any prospect of employment in New Zealand.
[44] After carefully reviewing all of the evidence I have reached the conclusion that Judge Ruth did not err in law when assessing the consequences of a conviction. Whilst another Judge on another day may not have placed the same weight on these factors as Judge Ruth did, I do not think Ms Cooke’s submissions identify a genuine error of law in the way in which Judge Ruth assessed the potential consequences of a conviction in this case.
Fourth alleged error of law
[45] Ms Cooke submitted that Judge Ruth erred in finding the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence and that he underplayed the gravity of the offending, usurped the role of the immigration authorities and placed undue weight on the possible immigration and employment consequences for Mr Singh.
[46] While Judge Ruth took a view of the evidence that others may not have adopted he did not misdirect himself on the law, ignore irrelevant matters, place weight on irrelevant matters or reach findings of fact that were not supported by the evidence.
[47] This was an unusual case. In my assessment, Judge Ruth was entitled to place considerable weight on the steps taken by Mr Singh following his offending to address the consequences of his conduct. Whilst this case was finely balanced, I do not accept that the threshold for establishing an error of law has been satisfied in the way submitted by Ms Cooke.
Conclusion
[48] In my assessment, the Solicitor-General has not demonstrated errors of law that justify the granting of her application for leave to appeal.
[49] The Solicitor-General’s application for leave to appeal is therefore dismissed.
Solicitors:
Crown Law, Wellington
R A Harrison, Blenheim
D B Collins J
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