Solicitor-General v Singh

[2014] NZHC 3331

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-391 [2014] NZHC 3331

THE SOLICITOR-GENERAL

v

AMRITPAL SINGH

Hearing:	18 December 2014
Appearances:	M Downs and J C Campbell for Appellant D Hoskin for Respondent
Judgment:	18 December 2014

(ORAL) JUDGMENT OF LANG J [on Crown appeal against sentence]

THE SOLICITOR-GENERAL v SINGH [2014] NZHC 3331 [18 December 2014]

[1]      Mr Singh pleaded guilty in the District Court to two charges of aggravated robbery.  On 22 October 2014, Judge Recordon sentenced him to 12 months home detention on each charge.   In addition, he ordered him to perform 100 hours community work.1    The Crown appeals against that sentence on the basis that the Judge selected a starting point that was well below the appropriate level, and as a result the end sentence was manifestly inadequate.

Background

[2]      The charges arose as a result of two separate incidents that occurred four days apart. At around 12.20 pm on 14 April 2014, Mr Singh and two associates were in a motor vehicle in Papatoetoe.  Mr Singh was the driver of the vehicle.  They drove to a retail store in East Tamaki Road.  Mr Singh waited in the vehicle whilst his two associates went inside.   One of his associates, Mr Jawan, walked up to the sales person who was standing at the counter.  Mr Jawan punched the sales person in the face, causing him to fall to the ground.  Mr Jawan’s associate then grabbed a plastic bag and filled it with packets of synthetic cannabis from a display stand beside the counter.  The two men then left the store and returned to the vehicle.  Mr Singh then drove them away.

[3]      On the afternoon of Friday 18 April 2014, the three men were again in the same vehicle.  Mr Singh drove his associates to a retail store on Puhunui Road.  He parked directly outside the front entrance, and waited in the vehicle whilst Mr Jawan and the third man went into the store.  The third man was armed with a rifle.  He walked up to the counter, pointed the rifle at the shop keeper and demanded money from her.  The shopkeeper took out about $100 in cash from the till and gave it to Mr Jawan.  Mr Jawan and the third man then ran out of the shop with the money, and Mr Singh drove them away.

[4]      When interviewed by the police, Mr Singh said he had gone to the first store with his associates in order to steal synthetic cannabis. He described his role as being

1      R v Singh DC Manukau CRI-2014-092-4366, 22 October 2014.

that of the getaway driver.   He told the police he had gone to the second store in order to rob the store of cash so that he could purchase more synthetic cannabis.  He also said he had gone into the second store before the other two men to purchase a drink and reconnoitre the store.

The sentence imposed on Mr Jawan

[5]      By  the  time  Judge  Recordon  sentenced  Mr  Singh,  Mr  Jawan  had  been sentenced by Judge Treston.2    Judge Treston had taken a starting point of six and a half years imprisonment to reflect Mr Jawan’s culpability in relation to both charges. He then reduced the starting point by ten per cent to take into account Mr Jawan’s age, his expressions of remorse and previous good character.   Mr Jawan was 18 years of age at the time.  He then gave the maximum dixscount available in respect of Mr Jawan’s guilty pleas, namely 25 per cent.   This resulted in end concurrent

sentences of three and a half years imprisonment.

The sentence imposed on Mr Singh

[6]      Judge Recordon  was  aware when  he came to  sentence Mr Singh  of  the starting point that Judge Treston had taken when sentencing Mr Jawan.  He clearly considered, however, that a starting point of six and a half years imprisonment was too high.  He considered that a starting point of between three and a half and four years  imprisonment  was  appropriate  to  reflect  Mr  Singh’s  culpability  on  both charges.  He applied a discount that he estimated to be around 35 to 40 per cent to arrive at an end sentence of two years imprisonment.  He then imposed the sentences of 12 months home detention and 100 hours community work.

Decision

[7]      As Judge Treston acknowledged when he sentenced Mr Jawan, the sentences to be imposed in cases of aggravated robbery are guided by the judgment of the Court of Appeal in R v Mako.3     In that case the Court of Appeal gave several

examples of the starting point to be applied in relation to that offence.

2      R v Jawan DC Manukau CRI-2014-092-4366, 25 June 2014.

3      R v Mako [2000] 2 NZLR 170.

[8]      One  of  the  examples  given  by  the  Court  of  Appeal  in  Mako  was  that involving the robbery of a small retail shop. The Court of Appeal said:4

… a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present with or without assistance from a lookout or accomplice waiting to facilitate getaway.   The shopkeeper is confronted by one person with face covered.  There is no actual violence.  A small sum of money is taken.  The starting point should be around four years.   Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if money and other property is taken five years, and in bad cases six years, should be the starting point.

[9]      The present offending bears many of the hallmarks of this example.     It involved the robbery of two small shops by two offenders.  They demanded money from the till in one case after assaulting the shop keeper.   In the other case, they demanded money after pointing a firearm at him.  Although the offenders were not disguised, there was clearly a degree of premeditation involved, particularly in relation to the second incident.  Applying the principles referred to in Mako, it is clear that each incident warranted a starting point of around five years imprisonment.

[10]     In this case, totality principles need to be taken into account.   That is no doubt  why  Judge  Treston  adopted  a  starting  point  of  six  and  a  half  years imprisonment notwithstanding the fact that two separate robberies had occurred.  I do not see any justification for distinguishing materially between the role played by Mr Singh and that of his co-offenders.  He was a willing participant, and he knew what his role was.  He was fully aware that his co-offenders were going into the shop in  each  case  to  confront  the  shopkeeper  and  to  take  money  by  using  force  if necessary.  He would then no doubt share in the proceeds of the robberies.

[11]     I accept, however, that some modification needs to be made to reflect Mr Singh’s  slightly  lesser  role,  because  he  did  not  point  the  rifle  at  the  second shopkeeper and  he did  not assault the first shopkeeper.   The adjustment to the starting point must necessarily, however, be modest.  I consider that a starting point of six years imprisonment is the lowest that could be adopted in relation to both

robberies.

4 At [56].

[12]     In terms of mitigating factors, Mr Singh can rely on the fact that he had not previously appeared before the Court.   He was therefore a person who could be described as being of good character up until this offending.  He had also expressed some remorse to the probation officer, and he was just 19 years of age at the time he was sentenced.   I consider that these factors warrant a discount of around 15 per cent, or 11 months.  This would reduce the starting point to five years one month before taking into account the guilty pleas.  Like the Judge, I am satisfied that a full discount of 25 per cent is warranted to reflect Mr Singh’s early guilty pleas.  This would reduce the sentence by 15 months, thereby producing a sentence of three years ten months imprisonment.

[13]     Mr Singh has now served two months of his sentence of home detention. This is roughly equivalent to a sentence of four months imprisonment.   For that reason, I would reduce the sentence to an end sentence of three years six months imprisonment.

[14]     It  goes without saying from what  I have said  that  I accept  the Crown’s submission that the Judge adopted a starting point that was much too low and failed to recognise the seriousness of Mr Singh’s offending having regard to well-known Court  of  Appeal  authorities.    This  led  to  the  end  sentence  being  manifestly inadequate.

[15]     Although one can understand the Judge endeavouring to assist Mr Singh in what was a very difficult situation, it is important for our criminal justice system that offenders be sentenced on a consistent basis.   It undermines the criminal justice system if two offenders in the same incident who have broadly the same culpability are sentenced in a manner that is so disparate.

Result

[16]     The appeal is accordingly allowed.   The sentences imposed in the District

Court are quashed.  In their place Mr Singh is sentenced to three years six months imprisonment on each charge. Those sentences are to be served concurrently.

Lang J

Solicitors:

Crown Law, Wellington