THE KING vGURINDERPAL SINGH BRAR

[2023] NZHC 3405

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF 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 3405

THE KING

v

GURINDERPAL SINGH BRAR

Hearing:	28 November 2023
Appearances:	L Radich, J Tausi and L Taula for the Crown D Dufty for the Defendant
Sentencing:	28 November 2023

SENTENCING NOTES OF WOOLFORD J

Solicitors:           Kayes Fletcher Walker Ltd (Office of the Crown Solicitor), Manukau Counsel:     D Dufty, Auckland

R v BRAR [2023] NZHC 3405 [28 November 2023]

Introduction

[1]                 Gurinderpal Brar, you appear for sentence today following a six-week jury trial that found you guilty of the attempted murder of Harnek Singh. The maximum penalty for attempted murder is 14 years’ imprisonment.1

Background

[2]                 I am now required to lay out the relevant facts for sentencing as I have determined them, in accordance with the evidence and the jury’s verdict at trial.2

[3]                 Around 2010, you began organising small gatherings for the Sikh community at your home every Friday, which attracted about 20 or 30 congregation members at a time. At that time, you were a truck driver and described as a "simple guy" and a "normal friend". The congregation increased in size, and as a result you leased a larger space in Wiri to accommodate them. The congregation continued to grow, and in around 2018, you were instrumental in setting up a gurdwara in East Tamaki and later another in Rotorua.

[4]                 As the congregation grew, you began to change. You told people to call you "baba ji", an honorific indicating great respect. You wanted people to touch your feet. Some people sought permission from you to conduct everyday tasks. You became less accessible to the congregation and instead met with people one-on-one. You formed a close circle of devotees or "chosen ones" comprising of about 20 to 25 people from the wider congregation. You inspired devotion and obedience from your congregation, but more so from the chosen ones. The other offenders were all part of the inner circle.

[5]                 The victim, Harnek Singh, was also part of the Sikh community, but he had a more liberal outlook than you. You did not agree with many things Harnek was saying on the radio and online and considered Harnek’s views harmful to Sikh culture. You shared your views about Harnek with the congregation and, over time, you developed a plan to silence him.

1      Crimes Act 1961, ss 173 and 66.

2      B (CA58/2016) v R [2016] NZCA 432 at [75]-[76]; and R v Connelly [2008] NZCA 550 at [14].

[6]                 About one week prior to the attack, you met with your friend, Baljinder Singh, in the temple carpark. You had known Baljinder since 2010. You asked Baljinder to turn his phone off, before saying that you wanted Baljinder to kill Harnek, and would provide everything including weapons, a car, a motorbike, and a silencer. At that stage, you did not have any other people involved, but told Baljinder that you had been planning to kill Harnek for "a long time". You explained that you had followed Harnek from both home and work and noticed that his route home would change most days. Baljinder refused to get involved and told you not to involve anyone else.

[7]                 Also, about one week prior to the attack, you approached Jaspal Singh as a possible recruit. You set out your plan to perform a "hit" on Harnek just before Christmas, saying that you "needed Harnek gone". You told Jaspal that he was a "chosen one" and there would be a bike, a stolen car, a gun, and that Jaspal would just need to drive. You said that someone would shoot Harnek with a gun and then hop into Jaspal's car. You told Jaspal to take a week off work. Your influence over the devotees was at this point so extensive that they felt that they had little or no agency over their actions.

[8]                 During the day on 23 December 2020, you and Jaspal Singh were travelling around Auckland picking up parts for a chiller unit. At one stage, you directed Jaspal to drive to Harnek's work, pointed out his red ute, said that it was Harnek's vehicle. You told Jaspal, "The job I was telling you about is gonna happen tonight". That afternoon, Jaspal went home but you told him to return to the temple in the evening.

[9]                 At about 6 pm, Jaspal returned to the temple, and you told him to go upstairs. Sarvjeet Sidhu, another devotee, was already there. You shut the door, sat on a pillow, closed your eyes, and told Sarvjeet and Jaspal "you two, the plan has changed, you two are the ones that’s gonna have the service of seeing this through" before giving a bag to Jaspal containing knives and bats.

[10]              Jaspal later met up with Sarvjeet and Jobanpreet Singh in Papatoetoe. The trio opened the bag you had given to Jaspal earlier, saw the stolen number plates, and changed the number plates on the car Jaspal was driving, a black Ford Ranger. There were other items in the bag – namely, bats, a "wooden thing", and knives. Jobanpreet

then began listening to the radio to monitor the progress of Harnek's live radio show before the three of them hurriedly drove to the gurdwara from which Harnek was broadcasting.

[11]              Shortly after 10 pm, Harnek ended his broadcast, called his wife, and commenced his drive home. Between 10.07 pm and 10.25 pm, Harnek's vehicle was followed by three vehicles – the Ford Ranger (containing Jaspal, Sarvjeet and Jobanpreet) a Toyota HiAce van (driven by Hardeep Sandhu (Hardeep)) and a Toyota Prius.

[12]              Upon arrival at Harnek's driveway, Hardeep crashed the Toyota HiAce van into the passenger's side of Harnek's ute, bringing it to a stop on the entrance to the driveway. The Ford Ranger then pulled up behind the red ute, Jobanpreet and Sarvjeet got out and approached the ute. They had their faces covered and had something in their hands. The pair began hitting the windshield with a bat. Jaspal joined in, and all three began trying to break the driver's window to Harnek's ute while Harnek remained in the driver's seat and pressing the horn. Jaspal struck the driver's window causing it to break, providing all three (Jobanpreet, Sarvjeet, and Jaspal) with an access point through which they could attack Harnek. All three began "going for it" and stabbing Harnek through the driver's window with knives. During the frenzied attack, both Sarvjeet and Jaspal injured themselves and stepped back. Jaspal also dropped his knife inside Harnek's vehicle.

[13]              The trio ran back to the Ford Ranger and fled. Jaspal called you and said, "It's done" and you thanked him.

[14]              A short time later, Jaspal dropped Jobanpreet off near Allenby Park (where they had met earlier that evening). Jaspal and Sarvjeet were both injured and decided to go to your home to ask for help. You were shocked to see them and told them to go to Sukhpreet Singh's home nearby. Sukhpreet was the operations manager for the East Tamaki gurdwara. When Sarvjeet and Jaspal arrived, Sukhpreet was standing outside. They wanted to hide the Ford Ranger but left it outside as it did not fit in the garage.

[15]              The trio went into Sukhpreet's house and Jaspal and Sarvjeet provided full details about the attack. Jaspal also told Sukhpreet he thought Harnek was dead. Sukhpreet gave them rags to stop the bleeding. Early the next morning, you arrived at Sukhpreet's house and chided Sarvjeet and Jaspal for still being in their bloodied clothes. Sukhpreet then provided them with fresh clothes to change into. Jaspal told you that he had GoPro footage of the attack, which was played. You were happy and proud of what they had done.

[16]About one month after the attack, you purchased Harnek's damaged ute for

$23,600 by online auction. The vehicle was towed to the East Tamaki temple, where it remained. Some months later, you said in a video call referring to Harnek's vehicle that you had bought the vehicle because "we need to get the evidence … to do our own investigation". You also arranged for the Toyota HiAce van used in the attack to be chopped up and disposed of by members of your congregation.

Impact on the victim

[17]              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.

[18]              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 to summarise its message here.

[19]              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 of time following the attack.

[20]              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.

[21]              Despite this, Harnek says 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

Pre-sentence report

[22]              I have received a pre-sentence report. It details your personal circumstances and gives recommendations for the outcome of your sentence.

[23]              You are 48 years old. You were born in Kolkata, India, and lived there until you were five years old, after which you moved to New Delhi. You reported that you and your family became homeless when you were 10, following a riot in which many Sikhs were killed and displaced. Your family moved to Punjab after this event and you worked in the family business.

[24]              In 2002, you and your wife moved to New Zealand and later, so did your parents. You have three daughters aged 20, 24 and 25 who live with you and your

wife. You described your family as your main support. In 2006, you started a transport business which has been successful.

[25]You do not have any previous convictions.

[26]              The report notes that you maintained your innocence throughout the interview. You claimed that you were falsely accused by Jaspal Singh, who carried out the attack by stabbing Harnek. You said that Jaspal falsely accused you to avoid responsibility for an outstanding debt of $400.

[27]              You told the report writer at length about your influence in the Sikh community and within your congregation. You say you’ve helped many people change their lives by moving away from drugs, alcohol and crime and towards faith. You criticised the victim as “such a bad person” and claimed that “the boys” (your co-offenders) also disliked Harnek. You claimed to have no knowledge of the incident or any plan to harm Harnek and said that you would have put a stop to it if you had. You said that you do not condone any type of violence.

[28]              The report notes with concern that you failed to demonstrate any insight to or remorse for the offending. Your interviewer was unable to engage you in questions related to your views on violence or your political values. Instead, you repeatedly said that you have been a positive influence on the Sikh community and that you have changed many lives.

Section 27 cultural report

[29]              A cultural report was also provided, authored by Anjeet Singh, a barrister and cultural report writer. The report addresses your personal, community and cultural background and was compiled from interviews with yourself and members of your family and congregation.

[30]              The report emphasises your role as a spiritual and community leader of the Sikh community in New Zealand. It says you are well-respected and that many regard you as a “spiritual father figure”. The writer observes that:

Those who formed part of Mr Brar’s congregation were generally non- religious and impressionable men and women looking for their identity and purpose in life. Many were in a transitional period attempting independence, all the while struggling to form a sense of belonging away from home… They came to Mr Brar in their late teens, twenties, and thirties and were young in terms of their age and/or their level of maturity.

[31]              The report focuses strongly on your acts of ‘seva’ – selfless service or work performed without the expectation of personal gain – noting that you have been volunteering your time at temple from 15 years old. You initiated a rehabilitation campaign for drug addiction in Punjab, which included setting up camping sites where addicts could receive treatment. The report says that you contribute to the gurudwaras not only by preaching but through acts of service like maintaining the bathrooms and helping in the kitchens. Following the Christchurch Mosque attack, you and a team of volunteers provided the families of victims with necessaries and donations. A similar effort was mustered by congregants to provide food bags to those in need at the height of the COVID-19 pandemic.

[32]              The report details your respected standing in the Sikh community. It notes your status as a “Babaji” was not passed down to you from a family member or associate, as is usual for the title. Rather, the honorific resulted from the popularity of your religious teachings. The report explains that, “[a] Babaji, or priest, holds a special place in the Sikh community as an all-encompassing, captivating spiritual guide.” It says that this status is also connected with being a “Sant”, meaning “a highly devout individual possessing saintly attributes.” Babajis or Sants are “thought to have understood the ultimate truth of God.” For this reason, trust is placed in their words and interpretation of the Holy Scriptures, customs, and rituals. The report included comments from your family and members of your congregation who affirmed your support of them and others, referring to you as a “spiritual father” who serves the community. There were many references to your efforts in supporting newly immigrated Indian families to adjust to life in New Zealand. The report also notes that you encourage the practice of dasvandh, or the giving of one-tenth of a person’s income to the gurdwara for charitable works.

[33]              You were asked about the offending and your opinion of the victim, Harnek Singh. As in the pre-sentence report, you say that you played no part in the planning

or execution of the attack and that you had no prior knowledge of it. The report records that:

Mr Brar believes that the attack on the victim had nothing to do with him, and instead had everything to do with the victim’s offensive commentary on the issue of the contentious laws passed by Prime Minister Narendra Modi’s government and the resulting farming protests. While Mr Brar is able to recognise how the situation came to fruition, he does not support the vigilantism that transpired.

[34]              Notably, you do not express any kind of empathy for the victim. The attack is described in the report as “vigilantism”. You appear to blame him for the attack which is characterised as a natural consequence of his expression of controversial opinions.

[35]              The report ends by urging the Court to take into account your years of seva and the positive comments from your family and congregation.

Approach to sentence

[36]              Sentencing is undertaken by a two-step process as outlined by the Court of Appeal in Moses v R.3 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 the second step, I will consider all aggravating and mitigating factors that are personal to you as the offender.

[37]              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.4 I must also denounce your conduct and deter you or others from committing the same offence.5 I consider also that the protection of the community is highly relevant given the nature of your offending.6

[38]              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

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

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

5      Sections 7(1)(e) and (f).

6      Section 7(1)(g).

sentencing in similar cases.7 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, implement the maximum penalty prescribed by statute.8

Discussion

[39]              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 against 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.

[40]              In your case, Mr Brar, it is especially important to denounce your conduct. You have been identified variously as the ‘architect’, ‘mastermind’ or ‘ringleader’ of the attack on Harnek Singh. I do not accept the submission of your counsel that it may be more correct to say that you were part of an arrangement to attack Harnek with others, rather than the controlling voice or the mastermind of the attack. You used your position of authority in the congregation to direct the attack on Harnek’s life, allowing you to keep a safe distance. You procured weapons and tracked Harnek’s movements in preparation for the attack. You chose members of your inner circle and convinced them that your instructions were sent from God, knowing that they would not refuse you. After the attack you purchased Harnek’s ute purportedly to carry out your “own investigation”. I view it more as a trophy and a warning to others.

7      Sections 8(a) and (e).

8      Sections 8(f) and (c).

[41]              Having been found out, you still refuse to show remorse or accept responsibility for the harm done to the victim. Instead, you have tried to place the blame on those around you, who had placed their trust in you as a spiritual leader. I consider it clear that  while  you  did  not  physically  participate  in  the  attack  on 23 December 2020, you hold the lion’s share of responsibility for what took place. Without your direction, the attack would not have taken place.

[42]With these circumstances in mind, I will now turn to the starting point.

[43]              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.9 It is usual for higher sentences to be imposed for attempted murder to reflect the offender’s intention to kill.

[44]              Jaspal Singh, one of your co-offenders, pleaded guilty and was sentenced on 26 May 2022.10 Venning J identified the aggravating features of the attack as follows, which I adopt:11

(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.

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

10     R v Singh [2022] NZHC 1188.

11 At [18].

(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 officer at the scene without which the victim would likely have died. The victim will be permanently affected by his injuries.

[45]              Venning J further considered that the religious or ideological motivation behind the attack was aggravating.12 A starting point of 12 years and six months’ imprisonment was adopted with respect to Jaspal Singh to reflect the gravity of the offending as being within band 3 of Taueki but acknowledging that Jaspal was not the ringleader of the attack. Your counsel referred to three cases in support of his submission that the starting point for Jaspal Singh of 12 and a-half years’ imprisonment was too high.13 Based on the case law referred to, he says it should have been between nine and 10 years’ imprisonment. The three cases cited are, however, quite different. The victim in each case was the de facto partner of the offender, a party-goer who was engaged in a fight with the offender’s brother and the wife of the offender. None involved the cold and calculated actions you undertook towards a person for whom you say you never felt resentment or hatred.

[46]              Your position is significantly more serious than Jaspal Singh who undertook your bidding. You were the ringleader. I consider that your offending therefore clearly falls within the most serious cases of attempted murder and warrants the application of the maximum penalty. I therefore adopt a starting point of 14 years’ imprisonment.

[47]There are no mitigating features of the offending.

Personal mitigating factors

[48]              Turning to step two in Moses, I must now consider whether there are relevant factors that are personal to you which are relevant to sentence.

12 At [19].

13     R v Masoe HC Wellington CRI-2006-091-352, 15 September 2006, Clifford J; R v Falani [2014] NZHC 1879; R v Ae [2016] NZHC 965.

[49]              Your counsel, Mr Dufty, submits that discounts are available for previous good character and factors identified in your cultural report. Counsel points out that you have no previous convictions and refers to R v Hockley for the proposition that a clear record is itself evidence of previous good character.14 Counsel further notes that you have contributed considerably to your community over the years. Several letters of recommendation were filed attesting to your good works and the support given by your temple to those in need. Mr Dufty submits that a 10 per cent discount is appropriate.

[50]              Counsel further submits that a 15 per cent discount is available for the factors identified in your cultural report. Specifically, Mr Dufty says that there is a “very strong link” between your cultural and religious upbringing in India and your offending. Counsel says that you had a traumatic childhood. You experienced Sikhs being targeted in violent attacks following the assassination in 1984 on the Indian Prime Minister by her Sikh bodyguards which forced your family to flee from their home in Delhi. According to your mother, this experience was “traumatic and had long-lasting effects”. Mr Dufty submits that yours was a background of cultural deprivation and community violence in which your identity as a Sikh was threatened, and that this context mitigates your offending.

[51]              Counsel also seeks a reduction in sentence of six months’ imprisonment to account for the approximately 22 months spent on electronically monitored bail, the conditions of which were fairly restrictive and prevented your participating in activities at the gurudwara and spending time with family members.

[52]              Having carefully considered both the submissions and the respective reports, I do not find that a discount is available in respect of your previous good character. While I accept that you have provided service to many in the Sikh community and are a devout practiser of the Sikh faith, it is difficult to reconcile those positive factors with the offending. As I have said, the violent offending in this case is different to that which is usually seen in the courts. Discounts for previous good character are typically awarded in relation to positive contributions to society. It recognises that the “fall

14     R v Hockley [2009] NZCA 74 at [30].

from grace” for an offender of previous good character is itself a punishment and assumes that there is greater potential for rehabilitation.15 While I acknowledge your good works in your congregation, it is unavoidable that your influence on that congregation, and your influence over those within the gurudwara who looked to you for guidance, was also the catalyst for and driving force behind the offending. In this context, no discount can be available. It is a nullity.

[53]              Equally, I cannot find a sufficient basis for a discount based on the factors in your cultural report. I accept that you experienced difficulty in your upbringing and that such experiences will affect the development of your world view in the manner Mr Dufty submits. However, I am unable to accept that your upbringing and interpretation of your faith diminishes your culpability with regard to this offending, which was meticulously planned, highly violent, and targeted another member of the Sikh community. That claim is too far-reaching and is not borne out by the evidence.

[54]              In N (CA425/2022) v R,16 the Court of Appeal considered an argument that a discount should have been applied to recognise the contents of a cultural report, which suggested that the cultural background of the appellant normalised the subservience of women and was a causative contributor to his eventual sexual offending. The Court rejected the argument on the basis that while the appellant’s background may have included female subservience as a cultural norm (and this point was itself noted as an individual’s interpretation), that did not account for the ongoing sexual and physical violence that the appellant had engaged in. The connection was interrupted by the appellant’s other family members rejecting a view of subservience and demonstrating respect for women. The sentencing Judge was therefore able to find that the appellant’s offending was not the causative result of his upbringing and did not explain the prolonged nature of his offending. I consider that in this case, while your experiences and upbringing may have helped to form your views, the relevant causal connection is too tenuous to uphold a discount. This is particularly the case as you have continued to maintain your innocence and place blame on the victim for what occurred.

15     Manawaiti v R [2013] NZCA 88 at [16].

16     N (CA425/2022) v R [2023] NZCA 313 at [97]–[98].

[55]              I accept counsel’s submissions that a discount is available for your time spent on electronically monitored bail and that a reduction of six months’ imprisonment is appropriate.

Minimum period of imprisonment

[56]              Next, I will consider the matter of a minimum period of imprisonment. Section 86 of the Act provides that a minimum period of imprisonment may be imposed, where a determinate sentence is insufficient, to achieve the following purposes:17

(a)holding the offender accountable for the harm done to the victim and the community by the offending;

(b)denouncing the conduct in which the offender was involved;

(c)deterring the offender or other persons from committing the same or a similar offence;

(d)protecting the community from the offender.

[57]              The Crown submit that in your case, a minimum period of nine years’ imprisonment is appropriate to address the concerns under s 86, and particularly to mitigate against the ongoing risk that you pose to the community. I agree, for the reasons I articulated earlier in [39] to [41], which I will not repeat here.

Result

[58]Mr Brar please stand.

[59]              On the charge of attempted murder, I sentence you to 13 and a half years’ imprisonment with a minimum period of imprisonment of nine years.

17     Sentencing Act 2002, ss 86(2)(a)–(d).

[60]You may stand down.

Woolford J