The King v Sarvjeet Sidhu

[2023] NZHC 3406

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF CO-DEFENDANT (GURINDERPAL SINGH BRAR) UNTIL CALLOVER IN THE MANUKAU DISTRICT COURT ON 14 DECEMBER 2023.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-092-619

[2023] NZHC 3406

THE KING

v

SARVJEET SIDHU

Hearing:	28 November 2023
Appearances:	L Radich, J Tausi and L Taula for the Crown A Speed and K Trotter for the Defendant
Sentencing:	28 November 2023

SENTENCING NOTES OF WOOLFORD J

Solicitors:           Kayes Fletcher Walker Ltd (Office of the Crown Solicitor), Manukau

Counsel:A Speed, Auckland K Trotter, Auckland

R v SIDHU [2023] NZHC 3406 [28 November 2023]

Introduction

[1]    Sarvjeet Sidhu, you appear for sentence today having pleaded guilty to the attempted murder of Harnek Singh on 22 March 2022.1

Background

[2]    I will now lay out the background facts of your offending as taken from the agreed summary of facts to which you pleaded guilty.

[3]    The victim in this matter is Harnek Singh, who resides in Manurewa. Harnek is a member of the Sikh religion and is well known within the community as a person who commentates on politics and the Sikh religion in both New Zealand and around the world. Harnek runs a popular YouTube channel and radio broadcast where he shares his views. He is a polarising figure in the Sikh community. You did not know the victim personally but were aware of his views.

[4]    You attended a local Sikh temple in East Tāmaki with your co-offenders, one of whom, Gurinderpal Brar, was the spiritual leader of the temple. Gurinderpal had significant influence over the members of his temple, including you and your co- offenders. Orders from Gurinderpal were believed to be like orders from God.

[5]    In the lead up to the attack, Gurinderpal Brar was angry with Harnek’s commentary on Sikh politics and religion. Gurinderpal sought assistance from members of his inner circle at the temple, known as devotees, to kill Harnek. Gurinderpal procured a bag of weapons, including knives, and stolen number plates to be fitted onto a vehicle used in the attack. On 23 December 2020, Gurinderpal gave you and your co-offender Jaspal Singh final instructions. He gave you weapons and the stolen number plates. He told you to do the job properly and said that you had been chosen by God.

[6]    At about 6:50pm that evening, you and your co-offenders Jaspal Singh and Jobanpreet Singh parked outside Harnek Singh’s temple in a black Ford Ranger fitted with the stolen number plates, waiting for Harnek to finish work. He left the temple

1      Crimes Act 1961, ss 173 & 66. Maximum penalty of 14 years’ imprisonment.

at approximately 10:09 pm and you followed him in the Ford Ranger. You were soon joined by a white Toyota HiAce van, driven by Hardeep Sandhu, and a white Toyota Prius, driven by two other members of your temple.

[7]    Harnek Singh did not notice the three vehicles following him and continued to his home address. As he pulled into his driveway, Hardeep used the Toyota HiAce van to ram Harnek’s vehicle off the road and come to a stop with the Ford Ranger to one side and the Toyota HiAce van to the other. You, Jaspal and Jobanpreet got out of the Ford Ranger and began your attack on Harnek.

[8]    You and your co-offenders smashed Harnek’s driver window and attacked him through it.  You  used knives to slash and stab him over his  upper body, inflicting   40 wounds to his arms, chest, neck and head over a period of less than five minutes. During the attack, Harnek Singh used his vehicle’s horn to alert his neighbours who called Police. Police attended the scene and gave Harnek emergency first aid, including a tourniquet to his arm. He was urgently transported to Middlemore Hospital in an ambulance.

[9]    After the attack, you and Jaspal Singh drove to Sukhpreet Singh’s home address in Flat Bush. You tried to conceal the Ford Ranger inside a garage, showered, disposed of your bloodied clothing, and tended to injuries.

Impact on the victim

[10]   Absent the application of a tourniquet by Police responders, Harnek would have bled out and died at the scene. His injuries were extensive. During the initial surgery, multiple lacerations to the scalp and posterior neck and chest were temporarily stapled; a right anterior chest wound was packed to stop minor bleeding; the radial artery was repaired with a vein graft and the ulnar artery was ligated. Further damage was identified by CT scan. Harnek underwent multiple surgeries and is likely to suffer significant long-term effects on the use of his upper limbs due to nerve injury and scar tissue. It is unlikely that he will make a full recovery.

[11]   Harnek’s  victim impact statement was read aloud today, as provided for by  s 22(1)(b) of the Victims' Rights Act 2002. I want also to summarise its message here.

[12]   Harnek’s description of your attack is harrowing. He describes being trapped in his car while a gang of people stabbed him “uncountable” times. He says that he was certain he would die and mentally said goodbye to his wife and son. He was terrified and went into shock. When he regained consciousness, he was beset by excruciating pain and had to undergo many painful surgeries.   He received over   350 stitches to his head and upper body. During his recovery, he was unable to feed himself or stand up without assistance. Apart from the physical pain, Harnek also lost his independence. He had been the primary earner for his young family and was rendered unable to work for a long period following the attack.

[13]   Even though the acute danger of his injuries has passed, Harnek describes feeling fear and uncertainty about his future and that of his family. He fears for his safety and theirs, as do the family’s friends and colleagues. Harnek worries about the lasting mental impact of the attack on his teenage son and his wife, who, like him, are blameless. He says that his family has been transformed by the experience.

[14]   Despite this, Harnek says that he tries to encourage himself and his family to return to their everyday lives and live  without  fear. He expresses faith in the New Zealand justice system and his right to express his religious views without persecution. I will quote from his statement directly now:

You came to kill me. You wanted to take me away from my family. You tried to silence me. You wanted to send a chilling message to all those who express their disagreement with your unorthodox religious views. But you failed. I am standing alive in front of you. I will continue to express my opinions and beliefs as I always have. The only chilling message you have managed to send is to people with the same views and opinions as yours that actions have consequences and that in a country like New Zealand, the law does not bend for you if your wrongful acts are in the name of God.

Personal circumstances

[15]   A pre-sentence report records that you are 27 years old. You have no previous convictions. You were born in Punjab, India, and first moved to New Zealand in 2015 on a student visa. After returning to India in 2019 to marry, you and your wife then moved to New Zealand in 2020 on a work visa which is now expired. You have a young son, but no other family in New Zealand.

[16]   The report advises that you worked as a fibre technician for different contractors. You are qualified in computing at level 7, hold a diploma in electronics and communication engineering at level 5 and worked as a lead technician.

[17]   The report records that you are from a Sikh family but that you did not begin following the faith strictly until 2016. You told the report writer that being baptised into the faith changed your life. You began to explore “religious knowledge”, attending temple regularly to worship, volunteer and spend time with other members including your co-offenders. You started paying tithes. You now abstain from all substance use in accordance with your beliefs.

[18]   The report states that you expressed contradictory views on the use of violence. You said that violence is never necessary and is not a part of your beliefs, but that you were ‘provoked’ by the law. You appear to blame others for your offending, reportedly indicating that “if the police had addressed the vocal actions of [Harnek Singh], then the offending would not have occurred.” You attended protests in 2020 aimed at silencing Harnek, including one in Manukau where an effigy of Harnek was burned. You reportedly said that many members of the Sikh community were there, intimating that your actions were justified as “lots in the community felt this way [about Harnek Singh]”. The report notes that you continue to express hatred towards Harnek Singh’s views, that he has a “movement” of followers who are his “slaves”. It says that you felt these others would stop “if he stopped”, referring to the victim.

[19]   The report writer expresses the view that your entrenched religious views directly influenced the offending. The report writer further said that:

It appears there may also be a political element to the offending in that Mr. Sidhu indicated he aligns his views with the Khalistan movement, to which the victim was reportedly opposed. The Khalistan movement seeks to separate from India to create a homeland for Sikhs called Khalistan, located in the Punjab region. There have been violent extremist and terrorist attacks attributed to followers of this movement in the past. Mr. Sidhu's views towards the victim were discussed with him advising that he does not hate the person but hates the views he holds. Mr. Sidhu stated that "I'm totally against violence", quantifying this by saying "If you don't have the key to the door, you have to break the door". Mr. Sidhu appeared to infer that violence should never be condoned, but that the purported attack on his religious, and possible political beliefs may have justified his actions in this instance.

[20]   The report assesses you as having a moderate to high likelihood of reoffending and presenting a high risk of harm to others. This risk is assumed to be directed to Harnek Singh or others sharing his views. The report recommends a sentence of imprisonment and suggests that it would be beneficial for you to engage in sessions with a departmental psychologist to address your entrenched views.

Section 27 cultural report

[21]   A cultural report has also been provided, authored by Professor Chris Gallavin and collated through a combination of academic research and interviews with you. The report provides cultural context and an overview of  your  background.  Professor Gallavin is highly credentialed and is a leading scholar in New Zealand in the area of criminal law.

[22]   The report describes a difficult upbringing, in which you often felt that circumstances were “not fair” and that you were particularly unlucky in life. You describe being the less favoured son in the family, and subject to arbitrary punishment and beatings by your family members. Your family was not wealthy and in order to attend school you had to travel long distances and often did not have enough food for the day or stationery.

[23]   The report records that you learned from a young age to be deferential to authority figures and that this was reinforced by the rigid patriarchal hierarchy in your family (an arrangement which is not usual for Sikh families). Your father is said to have been an alcoholic who treated you like a “slave”. Your difficulties with your family led to two suicide attempts over the course of your life, the first occurring when you were 14 years old.

[24]   You describe being “forced” to move to New Zealand by your family who wanted you to earn income here that could be sent back to your family to help support them. Your transition to living in New Zealand was made easier when you began living with a co-worker who was from the same region as you and knew your father. This person connected you to the gurdwara and helped you to learn about the principles of the Sikh religion, which had not been a large part of your upbringing.

You found meaning and solace in your religious practice and were baptised into the faith in 2015. You and your wife married in 2019 and have a young son.

[25]   Professor Gallavin observes in the report that you experienced pronounced cultural dislocation on coming to New Zealand and that as a result, your connection to your faith strengthened. The report says that your “entire existence in New Zealand is one that sees [you] live, work, socialise, and pray with fellow Indian nationals and Sikh devotees.” Professor Gallavin considers that your upbringing made you highly impressionable, and your devotion to Sikhism produced an “automaton-like- adherence” to those you considered to be in authority. The report describes you as “the victim of strong and effective brainwashing”.

[26]   Your comments regarding the offending are conflicted. The report records that you expressed regret, sorrowfulness, and an extreme sense of unfairness at your situation. You told the report writer that the attack on the victim was “not personal” and that you loved and respected him as a human being but then accused him of provoking the attack by his actions. The remorse expressed in the report appears to be directed towards having acted contrary to the law and contrary to your family responsibilities, rather than for the harm done to the victim.

[27]   Professor Gallavin further notes with concern your apparent belief in your probable release and that this belief is shared by your community, who you say are supportive of you and your actions. Given the seriousness of the offending for which you are facing sentence, this belief is presented as evidence of your manipulation by trusted members of the Sikh community, or of an extreme naivety which leads you to misinterpret their otherwise benign statements

Approach to sentence

[28]   Sentencing is undertaken by a two-step process as outlined by the Court of Appeal in Moses v R.2 At the first step, I must set an adjusted starting point for your offending by incorporating the aggravating and mitigating features of the offence. At

2      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

the second step, I will consider all aggravating and mitigating factors that are personal to you as the offender.

[29]   I must also consider the purposes of sentencing under s 7 of the Sentencing Act 2002. Relevant to your offending is the need to hold you accountable for harm done to the victim and to promote in you a sense of responsibility for that harm.3 I must also denounce your conduct and deter you or others from committing the same offence.4 I consider also that the protection of the community is highly relevant given the nature of your offending.5

[30]   I must also take into account the gravity of your offending, your degree of culpability as against your co-offenders, and the desirability of consistency with sentencing in similar cases.6 Further, I must consider the effect of the offending on the victim and where the offending is identified as being among the most serious of its kind, effect the maximum penalty prescribed by statute.7

[31]   There is no tariff case for attempted murder, but the I am guided by R v Taueki in which the Court of Appeal established sentencing bands for offending causing grievous bodily harm.8 It is usual for higher sentences to be imposed for attempted murder to reflect the offender’s intention to kill.

Submissions

Starting point

[32]   The Crown submits that the starting point for your offending should align with that adopted by Venning J in R v Singh, with respect to your co-offender, Jaspal Singh.9 Venning J identified the aggravating features of the attack as follows:10

3      Sentencing Act 2002, ss 7(1)(a) and (b).

4      Sections 7(1)(e) and (f).

5      Section 7(1)(g).

6      Sections 8(a) and (e).

7      Sections 8(f) and (c).

8      R v Taueki [2005] 3 NZLR 372 (CA).

9      R v Singh [2022] NZHC 1188.

10 At [18].

(a)Planning and premeditation. All of the offenders were members of the same temple. The victim was specifically targeted. The attack and use of weapons was planned in some detail over a period of time. A concerted plan was devised to follow and immobilise the victim in his vehicle so that he could be attacked and killed.

(b)Extreme violence. The attack was particularly vicious and involved over 40 stab wounds to the victim.

(c)The attack included multiple blows and stabs to the neck and head of the victim.

(d)There were several physical attackers.

(e)The weapons included knives, which were used with the intention of inflicting fatal injuries on the victim.

(f)The injuries were gravely serious. A tourniquet was applied by a Police office at the scene without which the victim would likely have died. The victim will be permanently affected by his injuries.

[33]   Following consideration of the aggravating factors of the offending, a starting point of 12 years and six months’ imprisonment was adopted.

[34]   The Crown submits there is no reason to distinguish your offending from that of Jaspal Singh. On the facts, both you and Jaspal became involved in the plan through Gurinderpal Brar’s instruction, and were together when receiving the bag of weapons and that both of you were in the Ford Ranger as it followed the victim on the night of the attack. It further submits that you played similar roles in the attack, first by attempting to break the windshield of the victim’s ute and then attacking him through his driver’s window.

[35]   Your counsel, Mr Speed, acknowledges that Jaspal Singh’s sentencing is the dominant precedent, but disagrees with the Crown submission that your offending should not be differentiated from that of Jaspal Singh. Mr Speed says that Jaspal had

a more senior involvement in the incident, dealing directly with Gurinderpal Brar, while you took direction from Jaspal Singh. Your counsel says that you dispute having met directly with Gurinderpal Brar to receive instructions. On this basis, Mr Speed submits that a starting point of 11 years’ imprisonment is appropriate to reflect your lower-level role.

[36]   Further, Mr Speed takes issue with statements in your pre-sentence report which he says are opinions drawn from inference rather than an accurate recording of your views. Mr Speed alleges that the report is biased. For example, he points to the report writer’s comment that, “Mr Sidhu appeared to intimate this was a justification of his actions advising that lots in the community felt this way” as an unfair intimation. Mr Speed submits that rather than justifying the offending, you merely intended to show that the victim was an unpopular person in the Sikh community.

[37]   Your views as recorded by the report writer are, however, consistent with the views expressed by one of your character referees, who states:

It is an accepted fact that the victim Harnek is an agent provocateur, and his broadcasts convey misinformation and disinformation about Sikh history and religion. What made Harnek’s broadcasts especially provoking is the fact that he is head of a Gurdwara and presented himself to be a practicing Sikh while attacking every aspect of Sikh religion and history, especially by employing disrespectful language and grotesquely distorted interpretations.

…

For the future of my friend and his family, especially his 30 month old child, I humbly request you show leniency while awarding him sentence in this tragic case where one agent provocateur has ended up destroying so many lives, including his own. Harnek is a victim of what happened on December 24, 2020 – Sikh community was a victim of Harnek before that day and continues to be his victim even today because of his deliberately distorted broadcasts.

[38]   Further, Mr Speed says that the comments in the report relating to you being a supporter of the Khalistan movement arose as a result of the writer’s direct questioning, and that you had not mentioned your political affiliations. Mr Speed submits that the assessment of you as a supporter has an unclear factual basis and is disputed.

[39]   Your counsel further submits that, rather than having participated in the offending on the basis of animosity towards the victim, you were “brainwashed and betrayed” by Gurinderpal Brar. Mr Speed submits that on the basis of the factors in the cultural report, your upbringing, youth and personality suggest you are a malleable person who was successfully manipulated by Gurinderpal Brar.

Personal mitigating circumstances

[40]   The Crown acknowledges that a discount of 10 per cent is available for your guilty plea, which was taken about a week prior to trial. It does not consider that there is a basis for other discounts. While you are reasonably young, having been 24 years old at the time of the offending, you were at the upper limit of what can be described as ‘youth’. The Crown further states that your offending is not of the kind to attract a discount for youth, as it was not driven by factors associated with youth offending, such as immaturity or impulsivity.11 The Crown also notes that you have demonstrated no remorse and that your capacity for rehabilitation is uncertain given your entrenched views.

[41]   Mr Speed takes a different view, submitting that you were the youngest and most easily influenced of your co-offenders. He says that your involvement in the offending resulted from a distortion of your moral code and peer pressure, which you were not able to overcome or challenge because of your youth and your belief that Gurinderpal Brar’s instructions were sent from God.

[42]   Mr Speed submits that a further small discount is warranted for your remorse, which is said to be demonstrated in a letter provided to Court this morning.

[43]   Mr Speed also submits that you are entitled to a reduction in sentence for the approximately two years and five months spent on electronically monitored bail, which was reasonably restrictive. Mr Speed submits that a discount of 10 months’ imprisonment is available.

11     Counsel cites R v Mahoni (1998) 15 CRNZ 428 (CA) and Wiseman v R [2018] NZHC 1684 for the proposition that relevant youth offending involves these factors.

[44]   Altogether, Mr Speed submits that total discounts for all factors should be in the range of 50 per cent.

Discussion

[45]   In sentencing you today, I consider it necessary to address the motivation behind the attack on Harnek Singh. It bears all the hallmarks of religious fanaticism and may be distinguished from other types of violent crime by the extent to which those who carry it out believe themselves to be morally and ideologically justified. Violence of this kind is committed in furtherance of what is perceived as being for the ‘greater good’ of a specific religious or ideological community and the offenders claim to answer to a higher authority than the courts. Offenders do not generally act for personal gain and are also less concerned with the consequences they may suffer as individuals following the offending. Sentencing in this context requires a different approach. Emphasis must be placed on the need to protect the community from further violence, and it is essential to send a strong message of deterrence to others who may share the religious or ideological fervour and be incited to take similar action.

[46]   In your case, Mr Sidhu, I see no reason to differentiate your role from that of Jaspal Singh for the purposes of setting a starting point. Although you dispute meeting with Gurinderpal Brar to receive instructions and say you only dealt with Jaspal Singh, you pleaded guilty to an agreed summary of facts, which reads:

8. On 23 December 2020, Gurinderpal Brar  gave  Jaspal  Singh  and Sarvjeet Sidhu final instructions, and a bag containing weapons and stolen number plates LWK 360. Gurinderpal Brar told Jaspal and Sarvjeet that they had been chosen by God and to make sure that they do the job properly.

[47]   It is also evident that you took an active role in the physical attack on Harnek Singh because you were injured and bleeding from cuts you received either from the weapon you were carrying, or the knife held by Jaspal Singh. Harnek Singh did not possess a weapon. Nor did he take any active steps to defend himself.

[48]   I therefore adopt a starting point of 12 and a half years’ imprisonment. There are no mitigating features of the offending.

[49]   Turning then to personal mitigating factors, a youth discount is not available. You were 24 years old at the time of the offending and had been in New Zealand for approximately six years. You are married and have a son. You were involved in extremely serious offending with multiple offenders, which was highly premeditated, where the intention was to kill another person.

[50]   As to your previous good character, I acknowledge that you have no previous convictions, but there is no evidence that you have contributed to society in a positive manner to justify a discount for previous good character. The PAC report assesses you as having a moderate to high likelihood of reoffending and a high risk of harm to others.

[51]   It is accepted that you are entitled to a discount for your plea of guilty entered in the week before trial. The Crown submits that the discount should be 10 per cent. The defence submits 15 per cent is more appropriate. I am of the view, however, that no more than 10 per cent is available. The case was fully prepared for trial and the saving of time for the trial itself was not significant when you were one of seven defendants.

[52]   The report you obtained under s 27 of the Sentencing Act makes for interesting reading. The author of the report, Professor Gallivan, is a well-known and respected academic. He stresses that he has no medical or psychological expertise and does not purport to make any medical or psychological diagnosis. However, his conclusion as a lay person is that you have been the victim of strong and effective brainwashing.

[53]   In his opinion your familial, social, and cultural dislocation, your strong cultural normativity, and your impressionability and naivety are all factors that are fundamental to your offending. He says that in combination these factors have an “operative” and “proximate connection” to your offending in terms of the guidance offered by the Supreme Court in Berkland v R.12

12     Berkland v R [2022] NZSC 143.

[54]   The report does not, however, establish a direct link between these factors and the offending. It appears Professor Gallivan did not elucidate the circumstances of the offending from you in any detail but relied primarily on the agreed summary of facts.

[55]   However, I accept from all the evidence and other material available to me that you were vulnerable and able to be manipulated by Gurinderpal Brar. You talked to Professor Gallivan about your confidence that you would be set free at sentencing today. Professor Gallivan suggests that your comments speak of ideas and misinformation the likes of which were told to you by others and led you to commit the offence. I accept Professor Gallivan’s observation that you are in need of considerable supervision and intense counselling support.

[56]   I am therefore prepared to grant you a further 10 per cent for the factors identified in the s 27 report.

[57]   Any further discount for remorse is not warranted. Although I have received a letter of remorse from you this morning, the PAC report records your question why the Police could not restrict the victim’s actions in a similar way that they had restricted your actions through the imposition of bail conditions. You also made comments suggesting your actions were justified. You made similar comments to Dr Gallivan.

[58]   Finally, you have been on electronically monitored (EM) bail since 5 March 2021, approximately two years and five months, without any breaches. EM bail was, however, not unduly restrictive in that you were able to attend religious events and work from time to time when work was available. You did have some freedom of movement.  In  those  circumstances,  you  are  entitled  to  a  further  discount  of  six months’ imprisonment.

Result

[59]Mr Sarvjeet Sidhu, please stand.

[60]   On the charge of attempted murder, I sentence you to nine and a half years’ imprisonment.

[61]You may stand down.

Woolford J