The Queen v Singh

[2006] NZCA 69

IN THE COURT OF APPEAL OF NEW ZEALAND

CA348/05

THE QUEEN

v

KALVANT KAHL SINGH

Hearing:5 April 2006

Court:O'Regan, John Hansen and Harrison JJ

Counsel:P E Dacre for Appellant

KBF Hastie for Crown

Judgment:26 April 2006 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by John Hansen J)

[1]        Kalvant Kahl Singh appeals against a sentence of 17 years imprisonment imposed by Cooper J in the High Court at Auckland on 30 August 2005.  Following trial the appellant was convicted of two counts of rape, four counts of sexual violation by unlawful sexual connection, one count of attempted sexual violation, two counts of kidnapping, three counts of assault with a weapon, and one count of possession of equipment for the manufacture of methamphetamine.  On the first day of trial the appellant pleaded guilty to causing grievous bodily harm with intent to do so, a further count of kidnapping, assault with a weapon, and unlawful possession of a pistol.  The Judge imposed a minimum non-parole period of eight years.

[2]        The grounds for the appeal is that the sentence is manifestly excessive.

Factual background

[3]        The circumstances of this case are so horrific we consider it appropriate to set out the factual basis upon which the trial Judge sentenced the appellant as stated in his sentencing notes:

[4]       The facts relevant to your offending were these. You evidently formed the view that the person I will describe as the male victim, had taken money belonging to you. After spending time with him on the afternoon of 5 June 2004 and driving with him to the place where he lived, you commenced your offending by presenting a gun to him and although the circumstances were taken seriously by him at the time, he returned with you to your apartment in Henderson, naturally with no appreciation of the horrendous ordeal he was about to endure.

[5]       After your return to the apartment with him, you assaulted him. He was badly beaten, suffering a broken nose, a lost tooth, a broken jaw, and facial fractures.  He had bruising around his right eye and cuts to his head and lip. In addition to threatening him with the pistol, you threatened him with a knife, and used it at one stage to cut his cheek. It appears that for a large part of that evening and the following morning, his hands and legs were bound, making him a helpless victim. It may be that the two men of Asian origin who were referred to in the evidence at the trial also played a role in these assaults, but the evidence does not establish that one way or another. Even if they did, I think it is plain that you would have been the principal offender, based on the evidence that was given by the male victim at the trial.

[6]       As you knew, he was in fact a haemophiliac. He had discussed that condition with you a few days before. This would have added to the horror that his mother experienced when she arrived at the apartment to see him bound, beaten and bloodied, and she was prevented by you from rendering him assistance.

[7]       Over the course of the night you then subjected her to a horrifying, degrading ordeal in which you committed the rapes and the other sexual violations of which the jury found you guilty. Video footage which the Crown was able to produce showed her pleading with you to stop and you, still threatening at that stage, mocking her for being staunch and to her pleas expressly made to you as a mother and a grandmother, responding that you did not “mind fucking grandmothers for $60,000”.  It appears that the idea was to sexually violate her in front of her son, so that he would be forced to confess to having taken your money and perhaps reveal its whereabouts. This money was referred to by you in various and widely differing amounts, such as must leave a doubt as to whether there was any truth to your allegation that the money was missing or whether it was something that you perhaps imagined or invented, as some sort of explanation for the conduct in which you engaged.

[8]       I note that you returned to the theme of the missing money in the letter which you have written to me and which I have considered this morning. Effectively you repeat now the same justifications that were given in your statement to the police, repeated in the comments also that you made to the author of the pre-sentence report.  That report refers to the sum missing now being $800,000. Assuming that that is a misprint and your intention was to refer to $80,000, the sum missing would have grown again since anything that was said at the trial.

[9]       Be that as it may, you committed a series of humiliating acts on your female victim, raping her and inserting a gun that you had previously loaded in front of her, placing two bullets in it and then saying, “one, two people are going to die tonight”.  You threatened her with a knife which you held against her abdomen, you put her in genuine fear for her own life and that of her son. This 57 year old woman who had previously treated you in a friendly way. This was conduct that denied her humanity and your own.

[10]      Your third victim that night was a much younger woman, a friend of one who was apparently your girlfriend. She was lured to your apartment in response to your invitation to a party. She too was then detained in the apartment against her will and forced to witness some of the violence that took place there. You told her that she could not leave unless she submitted to sexual violation by you. There is no explanation for your conduct in relation to her, unless it lies in sadism.

[11]      The victim impact statements reveal the profound and horrific effects that your conduct has had. The main female victim speaks of the horror she felt on arriving to see her son lying on the ground with his hands tied. She says:

There are not enough words to describe the 13 hours of terror I endured … just wondering if we were going to be alive. I had no doubt that Karl Singh was going to kill us both. I wondered how my children and grandchildren would cope, knowing we were killed.

Now, to try to relive the scenario and face those feelings would send me to the brink of insanity.

[12]      She tells of her on-going horror as she heard you attacking her son, how she begged you to stop, how she now lives with constant fear, sleeplessness, fear of the dark, sometimes being unable to get out of bed, suffering from nightmares and flashbacks, harbouring suicidal thoughts. She has on-going physical problems as well as a result of your sexual assaults. For a year she has been in the care of a psychiatrist, seen twice a week. Having previously lived an independent life, with her own car and apartment, she has had to sell her car, and faces a mortgagee sale of her apartment. She is scared of any situation where men might misbehave and so feels unable to use her bar manager’s licence that had just been renewed prior to the incident. In short, you have devastated her life.

[13]      The other female victim was also traumatised by the events of the evening.  She has recurring nightmares, and speaks of on-going emotional suffering. Her relationships with family and friends have been badly affected. She too is concerned for her safety and feels unable to speak about the torment she went through. Your male victim also speaks of the terrible ordeal which he underwent.

[4]        The Judge found that there were significant aggravating features which included:

a)Multiple ongoing and repeated sexual violations lasting between 12 and 13 hours.

b)The rapes and sexual violations occurred in a setting involving the use of weapons, including knives and a pistol.

c)The sexual violations against the victim were in the presence of her son, with the purpose of extracting information from him in relation to money that was supposedly missing.  The Judge found this to be a special and perverse type of premeditation.

d)Premeditation in arming himself with a gun and inviting the second female victim up to his apartment.

e)The harm caused by his conduct and the cruelty in the commission of the offences.

f)The vulnerability of the victims because of their age and health.

g)The ages of the victims.  The first victim was aged 28 years; the second victim, his mother, 57 years; and the third victim was aged 16 years.

[5]        The sentencing Judge did not find any mitigating features as the guilty pleas entered in regard to four of the charges were entered only on the first day of the trial, and they did not spare the victims the ordeal of giving evidence.  The Judge found nothing in the pre-sentence report or the appellant’s letter that warranted a reduction in sentence.

[6]        The Judge found that the sexual offending warranted a sentence of 15 years, but with the assaults and the kidnapping increased the overall sentence to one of 17 years.  The Judge imposed 17 years on the two rape charges.  He imposed concurrent sentences of between four and 10 years for the other sexual offending; six years for the kidnappings; three and a half years for the grievous bodily harm charge; 18 months on the assaults with a weapon; 18 months on the drug charge; and nine months for the Arms Act offence.  He did not consider that previous offending, although serious, warranted any further increase.

[7]        The Judge set the minimum non-parole period at eight years because of the unusual callousness of this case, the vulnerability of the victims, the fact there were multiple victims, and that the appellant’s actions were deliberate and he clearly intended the serious consequences which eventuated. 

Submissions

[8]        Responsibly, Mr Dacre did not seek to minimise the seriousness of the appellant’s behaviour.  Rather he argued the sentence was manifestly excessive as it consisted of only one incident of offending with consequences that are not as serious as those found in other cases.  He argued that cases such as R v O’Leary CA258/05 3 March 2006 and R v Narayan CA395/01 22 April 2002 represent, in the totality, a category of more serious offending. 

[9]        Mr Dacre submitted there were a number of factors not present that prevented this case being placed at the highest level of offending.  He said there was no breach of trust, such as found with sexual offending by parents, relatives, caregivers or teachers.  There were no serious physical injuries which led to permanent disabilities such as in Narayan.  There were not multiple complainants in relation to the sexual offending, nor was it serial sexual offending.  While he accepted the complainants’ ordeal lasted for an extended period, it was not a case of repetitive sexual offending lasting for months or even years.  While Mr Dacre accepted these complainants were vulnerable, he submitted they were not in the category of particularly vulnerable victims, such as young children.  He also submitted there was no history of similar offending.

[10]     For the Crown, Ms Hastie submitted that the serious and aggravating features in this case were designed to humiliate and degrade, and thus called for a strong sentencing response.  A substantial increase from the starting point for the rape offences was required.  She referred to the provisions of s 8(d) of the Sentencing Act 2002 and submitted that the sexual violation offending in this case must be regarded as at the higher end of the scale of seriousness.  This would warrant a sentence nearer to the maximum penalty, even before the totality of the appellant’s offending was considered.  She said the total period of imprisonment of 17 years was not out of proportion to the gravity of the overall offending and could not be said to be manifestly excessive.

Discussion

[11]     The sexual offending in this case was depraved and degrading to an extreme degree.  It was used as a means of attempting to extort money or information from the male victim, and to that extent must be seen to have an element of torture about it.

[12]     It is difficult to compare a case of this sort, involving extreme sexual brutality over an extended period, with representative sexual offending that occurs over months, or even years.  Like all sentencings, it falls to be determined on its peculiar facts.

[13]     The behaviour is seriously aggravated by the appellant forcing both the male victim and the 16 year old female victim to observe most of his actions against the first female victim.

[14]     The Crown was able to produce video footage that showed the first female victim pleading with the appellant to stop, and the appellant mocking her for being staunch and mocking pleas made to the appellant by the victim as a mother and a grandmother.

[15]     In considering the totality of the offending, it cannot be overlooked that as well as the sexual offending there was the kidnapping of the male victim and the younger female victim.  The appellant inflicted a serious beating on the male victim, causing a broken nose, lost tooth, broken jaw, facial fractures, bruising around his right eye and cuts to his head and lips.  For much of this ordeal the male victim was bound, making him helpless.

[16]     Section 8 of the Sentencing Act, where relevant, reads:

8          Principles of sentencing or otherwise dealing with offenders

In sentencing or otherwise dealing with an offender the court—

…

(d)must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and

…

[17]     We do not accept Mr Dacre’s submission that this offending is one level below “the most serious of cases”.  In our view it is unhelpful to attempt to compare it with other cases which have completely different facts.  The reality of this case is that there was a sustained depraved, sadistic, and brutal sexual attack on the first female victim over a 12 to 13 hour period.  The facts set out above from the learned Judge’s sentencing notes make it plain that this case is near to the most serious of such cases.  Indeed, it is hard to think of a worst case.  On that basis it cannot be said that the Judge’s assessment that 15 years was warranted for the sexual offending is manifestly excessive.

[18]     Standing back and considering the other very serious offending for which the appellant was sentenced, which persuaded the Judge to impose an additional two years, we cannot say that the final sentence imposed is manifestly excessive.  It is a stern sentence, but one warranted by the facts of this particular case.

[19]     Mr Dacre did not suggest that the minimum non-parole period was inappropriate.  That is responsible.  In our view the non-parole period imposed, against the facts of this case, could be described as generous to the appellant.

[20]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington