SINGH v POLICE [2019] NZHC 2985

SINGH v POLICE [2019] NZHC 2985 [15 November 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-121[2019] NZHC 2985BETWEEN GAGANDEEP SINGHAppellantAND NEW ZEALAND POLICERespondentHearing: 12 November 2019Appearances: A Holland for the AppellantC Piho for the RespondentJudgment: 15 November 2019JUDGMENT OF GORDON JThis judgment was delivered by meon 15 November 2019 at 3.30 pmRegistrar/Deputy RegistrarDate:Solicitors: Crown Solicitor, Manukau, AucklandCounsel: A Holland, AucklandIntroduction[1] The appellant, Gagandeep Singh, pleaded guilty to a charge of male assaultsfemale at his first appearance.1 His application to be discharged without convictionwas declined.2 He now appeals that decision.Background[2] At the time of the offending, Mr Singh was 27 years old. He and the victimhad been in a relationship for around two years.[3] The police summary of facts states that, on 4 April 2018, Mr Singh went to thevictim's address and parked outside. The victim got into Mr Singh's car and the twostarted arguing over a social media account. The argument escalated, and Mr Singhpunched the victim in the right eye with a closed fist. He then drove the victim toMiddlemore Hospital where she received treatment for her injuries.[4] The District Court Judge described the victim's injuries as follows:3[3] She received a cut about her right eyebrow and a bruised eye whichshe was, at the time the summary was signed, unable to open due to swelling.I have had the benefit of also viewing photographs provided to me of theinjuries sustained and it is a significant injury to the victim's eye.[5] Mr Singh pleaded guilty at an early stage.District Court[6] On 4 March 2019, Mr Singh's application for discharge without convictionunder s 106 of the Sentencing Act 2002 (the Act) was heard in the District Court atManukau. In assessing the application, the Judge undertook the standard three-stepanalysis.4[7] First, as to the gravity of the offending, the Judge said:1 Crimes Act 1961, s 194(b). Maximum penalty: two years' imprisonment.2 Police v Singh [2019] NZDC 3954 [Decision on appeal].3 At [3].4 At [7].[7] I must assess the seriousness of the offending. When I look at theinjuries sustained by the victim, this was no minor punch. This was asignificant blow causing a cut and a significant injury to the victim's right eye,as I say as is shown in the photograph. I therefore consider it at least ofmoderate seriousness.(emphasis added)[8] Secondly, as to the consequences of conviction, the Judge said:[9] The first is your desire to join the New Zealand Police. Whilst theaffirmation does not record it, I accept that Mr Johannson [counsel for thedefendant] says that you had in fact applied to join the New Zealand Policeforce in 2016, the year before this incident had occurred. You have also sincetaken some steps to complete the requirements of those wishing to join thepolice.[10] The second issue is that you wish to apply for New Zealandcitizenship. You have residence in New Zealand at the moment. In relationto each of those matters, the police have commented and I have questionedyour lawyer regarding those matters, that insofar as the application to join theNew Zealand Police is concerned, it is accepted that the conviction would notbe an absolute bar to you joining and that the police would in any event findout about this charge as it must be disclosed to them so they can check outwhether such a conviction would be a bar to you joining. [11] Insofar as citizenship and your resident status is concerned, apparentlyyou have recently had it confirmed that a conviction will not result in yourresidence status being revoked. A conviction may however require that youhave to wait some three years before you can apply for New Zealandcitizenship. There is some reference to your family situation however there isnothing stated which would, in my view, either individually or together,amount to reasons which would amount to consequences that are such that thetest under s 106 and 107 would be met.[9] Thirdly, as to whether the consequences were out of all proportion to thegravity of the offending, the Judge held they were not.[10] The Judge therefore declined the application for a discharge withoutconviction. However, he noted that taking into account Mr Singh's previous goodrecord and the steps taken in mitigation — including an eight-week stopping violenceprogramme, attending a successful restorative justice conference, and completingvolunteer work for a local Sikh temple — it was a sufficient penalty to record theconviction and enter a good behaviour bond.55 At [13].Approach on appealSection 232 of the Criminal Procedure Act 2011[11] An appeal against a refusal to grant a discharge without conviction under s 106of the Act is properly characterised as a composite appeal against conviction andsentence under s 232 of the Criminal Procedure Act 2011 (CPA).6 An appeal againstconviction proceeds by way of rehearing.7[12] Under s 232(2), the court must allow the appeal if it is satisfied that, in the caseof a Judge-alone trial, the Judge erred in his or her assessment of the evidence to suchan extent that miscarriage of justice has occurred, or if a miscarriage of justice hasoccurred for any other reason. A "miscarriage of justice" is defined in s 232(4) as anerror, irregularity, or occurrence in or in relation to or affecting the trial that has createda real risk that the outcome of the trial was affected or resulted in an unfair trial.8[13] There will have been a miscarriage of justice if there was a material error bythe judge in entering a conviction (s 232(2)(b)); and there will have been a miscarriageof justice "for any reason" if the Judge erred in applying the principles under s 107 ofthe Act (s 232(2)(c)).9[14] The decision as to whether the test under s 107 has been met is not a matter ofdiscretion. It is a matter of fact requiring judicial assessment which can be subject toappeal on normal appellate principles.10 If an appellate court comes to a different viewon the evidence, the trial Judge necessarily will have erred and the appeal must beallowed.11 But the appellant must show that an error has been made; the appeal courtis not to consider the evidence de novo.126 Jackson v R [2016] NZCA 627 at [16].7 Sena v Police [2019] NZSC 55 at [32].8 Criminal Procedure Act 2011, s 232(5): "In subsection (4), trial includes a proceeding in whichthe appellant pleaded guilty."9 Jackson v R, above n 6, at [12].10 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8] at [11] citing Rajamani v R [2007]NZSC 68, [2008] 1 NZLR 723 at [5].11 Sena v Police, above n 7, at [38].12 At [38].Sections 106 and 107 of the Sentencing Act 2002[15] Section 106 of the Act confers jurisdiction on a court to discharge an offenderwithout conviction. Section 107 provides:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unlessthe court is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.[16] The law in relation to ss 106 and 107 is succinctly stated by the Court of Appealin R v Taulapapa:13[22] It is settled law that a court considering a discharge should: examinethe gravity of the particular offence, taking into account all aggravating andmitigating factors of the offending and the offender; identify the direct andindirect consequences of conviction; and consider whether thoseconsequences are "out of all proportion" to the gravity of the offence. Onlythen does it move to considering the residual discretion under s 106. Theremust be a "real and appreciable" risk that any given consequence will happen:this standard recognises that the court is assessing the likelihood of somethingthat may happen in the future.[23] The offender should ordinarily put information before the court toprovide a factual basis for a decision that the test has been satisfied. There isno legal onus on the offender to do so however, and the standard of proof ins 107 is simply that the judge be satisfied that the requirements of the sectionare met.(footnotes omitted)[17] In assessing the gravity of the offence, the mitigating factors of the offenderthat may be considered include guilty pleas, expressions of remorse, and the court'sassessment of how likely it is that the offender will reoffend, the victims' perspective,and any consequence already suffered by way of reparation, community work orpublicity — in other words, anything that may affect the court's subsequent assessmentof overall culpability.14[18] There is no onus on an offender to establish that the disproportionality test hasbeen met. The requirement is simply that the court is to be satisfied it has been met.13 R v Taulapapa [2018] NZCA 414.14 R v Hughes, above n 10, at [27]–[28] citing with approval Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005 at [29] and Montgomery v Police HC Palmerston North CRI-2005-454-70, 11 April 2006 at [10].The word "satisfied" calls for the exercise of judgment by the court and it is inapt toimport notions of the burden and standard of proof.15 It is sufficient if the court issatisfied that there is a "real and appreciable risk" that adverse consequences will flowfrom conviction.16Discussion[19] It will be recalled that, in the District Court, the consequences Mr Singh reliedon were the loss of a potential career in the Police and a delay in being able to applyfor citizenship. Mr Singh no longer pursues those grounds but now relies on a newground, namely that a conviction will be a significant impediment to his current andfuture work opportunities. In particular, after his conviction, Mr Singh changed hisemployment from the transport company where he was working as a driver to anothertransport company. His position there has been terminated because of his conviction.He now says that his employment and progression in the transport industry is a newconsequence for the court to consider.Fresh evidence[20] Mr Holland, for Mr Singh, seeks leave to adduce two new affidavits fromMr Singh, which are said to contain "fresh evidence". The Crown opposes leave onthe basis that the evidence is neither "fresh" nor cogent; it says this is a change ofcircumstances, not fresh evidence.[21] Under s 335(2) of the CPA, this Court, on appeal, can conduct its own inquiryinto evidential matters if it considers it necessary or expedient in the interests of justiceto do so.[22] Applications for fresh evidence are governed by r 8.8 of the CriminalProcedure Rules 2012. There is technical non-compliance with that rule. The noticeof appeal does not set out the particulars of the further evidence. There was nomemorandum filed and served within 30 working days after the notice of appeal was15 R v Hughes, above n 10, at [49].16 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20]; and DC (CA47/2013) vR [2013] NZCA 255 at [43].filed setting out the particulars of the further evidence. The submissions are dated16 September 2019; the notice of appeal was filed 1 April 2019. There is similarly noaffidavit filed within the required 30 working days after the filing of the notice ofappeal. Mr Singh's first affidavit was sworn on 16 September 2019 and his secondaffidavit was sworn on 12 November 2019.[23] I will nevertheless consider the application on its merits. The test for adducingfresh evidence is set out by the Privy Council in Lundy v R:17[120] If the evidence is not credible, it should not be admitted. If it iscredible, the question then arises whether it is fresh in the sense that it isevidence which could not have been obtained for the trial with reasonablediligence. If the evidence is both credible and fresh, it should generally beadmitted unless the court is satisfied at that stage that, if admitted, it wouldhave no effect on the safety of the conviction. If it considers that there is arisk of a miscarriage of justice if the evidence is excluded, it should beadmitted, notwithstanding that the evidence is not fresh.[24] The overriding test is what is required in the interests of justice.18[25] Mr Singh deposes that, at the time of the application in the District Court, hewas working in the transport sector as a driver. He says he did not have any meaningfuldiscussions with his (then) lawyer about the possible impact a violence convictionmight have on his job or his ability to successfully gain work in the future. He says,however, since the application was declined, he has realised that a conviction forviolence is going to have a direct impact on his ability to keep working.[26] Mr Singh says that soon after he received his conviction, he was offered a newrole with a transport and logistics company. The role involved a significant increasein responsibilities and he was keen to take it. However, Mr Singh says when hedisclosed his conviction to the company owner he was reluctant to employ him andonly did so on the basis that Mr Singh told him he was appealing his sentence. Theowner apparently agreed to employ him subject to the outcome of the appeal.[27] In his second affidavit, Mr Singh deposes that the owner changed his mind andterminated his position on the basis of Mr Singh's criminal conviction. He says that17 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.18 At [119]; and Bain v R [2007] UKPC 33 at [34].he has been unemployed since the end of September 2019. He has applied for betweeneight to 10 positions, primarily with call centres or in transport roles because he hashad experience working in such organisations in the past. Each job applicationrequired that he disclose his recent criminal conviction. Mr Singh says that aftermaking this disclosure and submitting his job application, he has been unable to obtaina single job interview.[28] Mr Holland submits that it is in the interests of justice for the fresh evidence tobe admitted. Mr Singh was unaware of the potential employment consequences whenhe applied for his discharge without conviction but it has now become apparent that aconviction for violence has had a direct and detrimental impact on his employmentprospects. Mr Holland relies on three judgments in this Court where evidence offurther circumstances, not identified at the time of conviction, were admitted onappeal.19[29] Mr Piho, for the respondent, submits that the evidence is neither fresh norcogent. He submits that the appellant has created the difficulty that he is now relyingon. He made the choice to change jobs to one dependent on a successful dischargewithout conviction. However, Mr Piho, in oral submissions, made it clear that therespondent does not suggest that Mr Singh has deliberately manipulated the situation.[30] In my view, the evidence is not fresh. Evidence of difficulties in employmentin the transport sector could have been advanced by Mr Singh at the time theapplication was made in the District Court. However, it is credible. Although it is notfresh, I accept it is in the interests of justice for this Court to consider the two affidavitssworn by Mr Singh, and I admit them as evidence on the appeal.[31] On that basis, I now turn to the three-stage analysis for s 106 applications:20(a) the gravity of the offence;(b) the direct and indirect consequences of a conviction; and19 Kumar v New Zealand Police [2015] NZHC 3293; Miller v New Zealand Police [2017] NZHC2183; and Richardson v Police [2015] NZHC 1431.20 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [8].(c) whether those consequences are out of all proportion to the gravity ofthe offence.Gravity of the offence[32] Mr Holland submits that the offending behaviour itself is within the moderaterange, acknowledging the problematic nature of domestic violence and there being astrike to the head.[33] Mr Singh explains the background to his offending as follows. He says that heand the victim were in a relationship and he believed they were committed to buildinga future together. He says he became jealous when he found out the victim had hadan affair. It hurt his feelings and he found himself going into an emotional spiral. Hesays that on the day of the incident he had planned to talk to her about theirrelationship. But when he saw that she was accessing a dating site on her phone andmessaging another male, he lost his temper. He says this is the worst thing that he hasever done in his life and he is very embarrassed about it. He says he is extremely sorryfor what he did to the victim. She did not deserve to be assaulted by him. He acceptsfull responsibility for what happened.[34] However, Mr Holland goes on to submit that when one takes into account thepost-offence efforts by Mr Singh and his personal circumstances, then a properassessment of the gravity is low to moderate.[35] Mr Holland refers to the Judge's assessment of the offending itself as being "atleast of moderate seriousness" and submits the Judge erred as he failed to make aspecific finding as to gravity after accounting for mitigating factors.[36] In an early part of the decision, the Judge said the following:[4] To your credit, you pleaded guilty at an early stage. You tookresponsibility for your actions. The matters went off and you completed ananti-violence programme through Shine. That is also something I can takeinto account. You were at the time 27 years of age without any previousconvictions. In addition, it appears that you have volunteered at a Sikh templein Papatoetoe. That is also something I do take into account.[37] Then the Judge said:[7] In terms of the application for a discharge without conviction, the testthat must be applied is that under s 106 and 107 of the Sentencing Act 2002,it is well recognised that test requires me to carry out a three-step test. FirstlyI must assess the seriousness of the offending. When I look at the injuriessustained by the victim, this was no minor punch. This was a significant blowcausing a cut and a significant injury to the victim's right eye, as I say as isshown in the photograph. I therefore consider it at least of moderateseriousness.[8] I have already pointed out some of the factors that can be taken intoaccount on your behalf: your previous good record, your early guilty plea andthe steps that you have taken. In addition, I have an affirmation that you havesigned and submissions have been filed on your behalf. The affirmation thatyou signed really sets out two substantive grounds for the application to begranted.[38] In my view, when the decision is read as a whole, I consider the Judge did takethe mitigating factors into account. It is not strictly necessary that those factors beconsidered at the first stage. In Z (CA47/2012) v R, the Court of Appeal said:21[27] For our part, we consider that there is much to be said for the approachadopted by the Divisional Court in A(CA747/2010). That is: when consideringthe gravity of the offence, the court should consider all the aggravating andmitigating factors relating to the offending and the offender [28] However, while consideration of [the offender's personal andaggravating and mitigating] circumstances must, in our view, be carried out inthe context of the s 107 analysis, whether this occurs at the first or third stepof that analysis is not of great significance. Provided that all relevant factorsare considered in the s 107 context, the precise point at which they areconsidered is unlikely to be material.[39] However, I respectfully disagree with the District Court Judge in hisassessment of gravity. I accept Mr Holland's submission that it can be characterisedas low to moderate. I say that for the following reasons:(a) Mr Singh has no previous convictions.(b) Immediately after the incident, Mr Singh drove the victim toMiddlemore Hospital so she could receive treatment for bruisingaround her eye. I accept Mr Holland's submission that it can be inferredfrom this conduct that Mr Singh's offending was out of character andthat he demonstrated remorse by trying to assist his victim.21 Z (CA47/2012) v R, above n 20.(c) Mr Singh pleaded guilty at his first appearance.(d) Mr Singh completed the "No Excuses: Men's Stopping ViolenceProgramme" at Shine, which ran from 8 June 2018 to 16 October 2018.Mr Singh says he learned about the effect of violence on a partner andan offender and learned tips to avoid violence and how to exercisedself-control.(e) Mr Singh attended a restorative justice conference with the victim, twocounsellors, a friend of the victim and her sister. Mr Singh said heapologised to the victim and admitted that it was his behaviour that hadruined the relationship. He says the victim expressed her feelingsdirectly to him and told him how upset she was and explained how ithad affected her. He says the victim forgave him and confirmed thatshe did not want as protection order.(f) Mr Singh has undertaken voluntary community service with theAuckland Sikh Society. He started volunteering at the Auckland Sikhtemple on 13 May 2018. The voluntary work has involved cleaning,washing dishes and serving food at the temple. He says this work hasbeen very hard for him to complete because, customarily, Sikh malesdo not complete such tasks, especially not in public. He says, as aresult, some male members of his community have ridiculed him andmade a mockery or what he is trying to achieve. Despite this, he hascompleted a total of 50 hours voluntary work at the temple.Consequences of conviction[40] Mr Singh relies on the current and future employment consequences stemmingfrom his conviction. At the time of his conviction, he was working in the transportsector as a class 5 truck and trailer operator, where he transported shipping containersto and from the Ports of Auckland.[41] I have already referred to Mr Singh's change of jobs since his conviction andthe subsequent termination of that employment because of his conviction. I have alsonoted that Mr Singh has been unable to obtain a job interview for any of the eight to10 positions he has applied for. He says that, prior to receiving a criminal conviction,he did not have any difficulty obtaining job interviews. He believes his conviction hashad a detrimental impact on his ability to obtain new employment, particularly giventhe jobs that he is applying for are low skilled and presumably have a number ofapplicants.[42] Mr Singh says, as a result of his unemployment, he is struggling to meet hisbasic living costs and has been suffering from acute stress and an inability to sleep.He has sought medical treatment for these issues.[43] Mr Singh was born in India and moved to New Zealand in 2010 but his familystill lives in India. He is responsible for his mother and father. They are elderly andhave no source of income and he provides them with financial support.[44] I do have some sympathy with the respondent's submission that Mr Singh hascreated this problem for himself by leaving his existing employment. There is nosuggestion that that employment could not have continued. However, even if MrSingh had remained in his previous position and had that position been terminated fora reason other than through the fault of Mr Singh, then I accept he would be in thesame position as he is in now.[45] I am satisfied that there is a real and appreciable risk that Mr Singh will beunable to obtain employment in the transport sector or as a call operator. Those areasof work (at least in terms of Mr Singh's roles) are relatively low skilled. I acceptMr Holland's submission that low skilled jobs of this kind might well have a numberof applicants and that Mr Singh's conviction has put him at a disadvantage in not evenbeing able to obtain interviews for the jobs for which he has applied.[46] I agree with the comments of Mallon J in Nash v Police where she said:22 In a variety of ways (eg. employment, insurance, immigration) people areasked to disclose whether they have criminal convictions. For those that areremorseful there can be a loss of pride and self-esteem or at leastembarrassment in having to answer that question honestly. It may also22 Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009 at [19].materially disadvantage him – as his counsel says it may count against himwhen he is competing for a position against someone who does not have aconviction.[47] Mr Holland submits that the District Court Judge did not have an opportunityto consider Mr Singh's employment consequences, but also that the Judge failed togive weight to the general consequences of a conviction, including stigma,embarrassment and barriers to travel and other opportunities. He submits that, whentaking all these factors into account, the consequences are "above moderate".[48] The Court of Appeal, in DC (CA47/2013) v R, has commented that a "criminalconviction is of itself a black mark on a record especially for somebody with noprevious history".23 And there may be real consequences for employment, whethercurrent or prospective.[49] I accept that there is a real or appreciable risk here in terms of Mr Singh's futureemployment.Proportionality[50] The next, and crucial, issue is whether those consequences are out of allproportion to the gravity of the offence.[51] This was a situation of domestic violence. I echo the comments of Mallon Jwhen she said, "Courts may be reluctant to grant convictions without discharge insituations of domestic violence".24 On the other hand, there is Mr Singh's immediateresponse of taking the victim to hospital (indicating his real and immediate remorse)and his other conduct which I have already acknowledged.[52] Overall, I am satisfied that the consequences of conviction in relation toMr Singh's employment are out of all proportion to the gravity of the offence,particularly having regard to the mitigating factors I have discussed.23 DC (CA47/2013) v R, above n 16, at [44].24 Nash v Police, above n 22, at [20].Result[53] The appeal is allowed. The conviction is quashed, and Mr Singh is dischargedwithout conviction under s 106 of the Sentencing Act 2002.___________________________________Gordon J