SINGH v POLICE [2021] NZHC 747

SINGH v POLICE [2021] NZHC 747 [1 April 2021]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2021-419-14[2021] NZHC 747BETWEEN HARINDER SINGHAppellantAND NEW ZEALAND POLICERespondentHearing: 30 March 2021Appearances: S A McKenna & A J Greaves for AppellantB B Harris for RespondentJudgment: 1 April 2021JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 1 April 2021 at 4:45 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:McKenna King, Hamilton[1] On 11 February 2021, Judge S R Clark in the District Court at Hamilton1sentenced Mr Harinder Singh (the appellant) to concurrent terms of 29 months'imprisonment on three charges, namely: injuring the first victim with recklessdisregard;2 and two charges of assault with a weapon relating to two further victims.3The Judge also sentenced the appellant to terms of six months' imprisonment onanother charge of assault with a weapon relating to a fourth victim, and on a charge ofpossessing an offensive weapon.4 Finally, the Judge sentenced the appellant to termsof two months' imprisonment on a charge of wilful damage of a motor vehicle,5 andon a charge of failing without reasonable excuse to assist a police constable to exercisea search.6 The Judge ordered that all terms of imprisonment are to be servedconcurrently.[2] The appellant, now aged 25, appeals against the sentence imposed on thegrounds that the Judge erred by failing to take a relevant personal mitigating factorinto account resulting in the imposition of a manifestly excessive sentence. Theappellant submits that a further reduction of six months should be applied to thesentence imposed and that an end sentence of home detention should appropriately beimposed.Offending[3] The seven charges arise from two sets of offending.The Hamilton offending[4] The appellant's offending is described in the Police summary of facts. Forseveral years prior to the offending the appellant and Sukhjant Singh had beenflatmates together living at a house in Manukau. During that time there were ongoingissues between them regarding the ownership of some personal property. When theappellant moved out of the flat, Sukhjant Singh retained a set of personalised vehicle1 New Zealand Police v Singh [2021] NZDC 2702.2 Crimes Act 1961, s 189(2). Maximum penalty: 5 years' imprisonment.3 Crimes Act 1961, s 202C. Maximum penalty: 5 years' imprisonment.4 Crimes Act 1961, s 202A(4)(b). Maximum penalty: 3 years' imprisonment.5 Summary Offences Act 1981, s 11. Maximum penalty: 3 months' imprisonment or fine notexceeding $2000.6 Search and Surveillance Act 2012, s 178. Maximum penalty: 3 months' imprisonment.licence plates that belonged to him but which the appellant considered were his. On17 August 2019 the appellant removed the personalised plates from Sukhjant Singh'svehicle without his consent. Then on 24 August 2019 the appellant contacted SukhjantSingh and told him that he had the plates and if he wanted them back he could collectthem from him in Hamilton.[5] That night at around 11.00 pm Sukhjant Singh and three male associatestravelled to Hamilton to collect the plates. At around 3.00 am the next morning, thefour men were waiting in Silverdale Road, Hamilton for the appellant to bring theplates. While waiting for the appellant Sukhjant Singh and his three associates wereattacked by the appellant and about7 eight unknown associates who appeared frombehind a block of shops wielding baseball bats and metal poles or golf clubs, andpossibly an ice hockey stick.8[6] A confrontation developed in which Mr Jasjeet Singh, who was one ofMr Sukhjant Singh's associates, was struck on his thigh with a baseball bat. Anotherof Mr Sukhjant Singh's associates, Mr Tejveer Pumal was hit on the head and left sideof his face by a blow from a baseball bat, and he collapsed onto the ground. Hesubsequently required medical treatment and was found to have suffered a head injury,orbital fractures, and facial lacerations. Although the police did not allege that it wasdefinitely the appellant who was responsible for striking those blows, they say that theappellant was one of the group involved in attacking the men.[7] A third victim, Mr Gurinder Chahal was struck on the head, arms and backwith a baseball bat wielded by the appellant. He suffered fractures to his right wristand finger. Mr Sukhjant Singh was also assaulted during the attack. He was struck onhis back and wrist by an unknown offender from amongst the appellant's group.[8] The attack ended when the victims managed to escape to their vehicles whichwere set upon by the appellant and his associates using weapons and metal rods.7 New Zealand Police v Singh [2021] NZDC 2702 at [5].8 There is some dispute over the nature of the weapons. The police claim they were baseball batsand metal poles. The defence claims they were baseball bats, golf clubs, and an ice hockey stick.The Pukekohe offending[9] On 18 March 2020 the appellant offended again while on bail for the Hamiltonoffending.[10] At around 8.30 pm that night two associates of the victims of the Hamiltonattack were sitting together in a parked Jaguar motor vehicle in Pukekohe. Theappellant and an associate then approached the vehicle. The appellant was armed witha meat cleaver, his associate was armed with a wooden stick. The appellant struck thedriver's side of the windscreen of the vehicle with the meat cleaver causing the glassto shatter and showering broken glass over the occupant in the driver's seat, andcausing cuts to his arms. The appellant still holding the meat cleaver, then attemptedto open the passenger door, however the second occupant of the car managed to lockit to prevent him opening it. The two occupants of the Jaguar then drove off and theappellant and his associate ran to a nearby car and they too drove away leaving themeat cleaver, stick and the appellant's driver's licence behind.[11] On 26 March 2020, police located the appellant, arrested him and seized hiscell phone. While being questioned by Police in relation to the offending he was askedfor the access number for his cell-phone, but declined to provide it. Mr Singh refusedto give the phone's personal access number on request.The Judge's sentencing decision[12] Having reviewed the facts related to the appellant's offending the Judgecommented that the charges were serious, and that the relevant principles of sentencingwere denunciation and deterrence.9[13] The Judge referred to the tariff judgment of Nuku v R.10 He considered theHamilton offending involved some planning and premeditation, weapons, attacks tothe head, and injuries. There were no mitigating factors. The Judge accordingly9 New Zealand Police v Singh [2021] NZDC 2702 at [16].10 At [19]; citing Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.placed the offending in band three of Nuku, and adopted a starting point of 30 months'imprisonment.11[14] Considering the Pukekohe offending, the Judge noted that the appellant wascarrying a meat cleaver as a weapon and used it to carry out the violent attack on thevehicle. The Judge noted that the appellant was on bail regarding the Hamilton chargesat the time, and that the occupants of the Jaguar car had been drawn into the disputewhich was effectively a continuation of the Hamilton offending. The Judge consideredthat taken together with the appellant's failure to co-operate with the Police search ofhis cell-phone, the Pukekohe offending could on its own have warranted a sentence of12-15 months' imprisonment. Accounting for totality, the Judge uplifted the originalstarting point by ten months to arrive a total of 40 months' imprisonment.[15] Turning to mitigating factors, the Judge noted that the appellant entered pleasof guilty to the charges in respect of the Hamilton offending on the day of his trial,being a year after his first appearance in Court on those charges. The Judge also notedthat the appellant had entered pleas of guilty to the Pukekohe related charges at asentence indication hearing on 19 October 2020. The Judge allowed a discount of 10per-cent for the appellant's guilty pleas. As the appellant had spent nine months onEM bail with restrictive conditions, the Judge also allowed a three-month discount,which is a 7.5 per-cent reduction off the 40 month starting point he adopted. Finally,the Judge gave a further discount of ten per-cent for: a lack of previous convictions;having shown a "bit of remorse"; and his willingness to attend restorative justice.12[16] The appellant's counsel also sought a 15 per-cent discount to recognise that hewould be deported to India after serving his sentence. Counsel submitted that havingregard to the COVID-19 situation in India and its effect on the Indian economy,Mr Singh's future following deportation would be "bleak".13 Judge Clark heldhowever that deportation was a risk the appellant ran, and an inevitable consequenceof his convictions. It did not merit allowing a sentence discount.1411 At [17]-[19].12 At [23]-[25].13 At [26].14 At [27][17] The Judge accordingly imposed an end sentence of 29 months' imprisonment,making him ineligible for home detention.15Submissions on appealAppellant[18] Mr McKenna on behalf of the appellant submits the Judge erred in not takinginto account Mr Singh's background as an immigrant with limited English and withoutany family residing here in New Zealand. Counsel refers to Zhang as authority for theproposition that:16 isolation of and denial of family support to foreign nationalsimprisoned for offending may be treated as a mitigating factor where it makes thesentence more difficult than is typical, to bear. Mr McKenna also refers to s 8(h) and8(i), and notes that the sentencing Judge was required to take the matters referred toin those statutory provisions into account as being relevant to the appropriate sentenceto be imposed.[19] He submits that the appellant's background was causatively linked to hisoffending as, having fallen out with his flatmates, the appellant had no family to turnto for support, and no pro-social guidance to rely on. Mr McKenna also submits thatthis absence of support will make the appellant's imprisonment more onerous for himthan would be the case for a New Zealand resident, and because of his limited English,he will struggle to communicate with Corrections Officers, form support networks inprison, and take part in courses and prison work.[20] Counsel refers to R v Anchondo, in which an American defendant received a10 per-cent discount for serving a sentence at a geographical distance from his familyand because he will also face difficulties due to his limited ability to communicate inEnglish.17 Mr McKenna initially submitted that the appellant should be given a largerdiscount than the ten per-cent allowed in Anchondo saying that these factors incombination warrant a discount of 15 per-cent, or six months. However at the hearingof the appeal he withdrew that submission and instead submitted that the appellant15 At [28].16 Zhang v R [2019] NZCA 507 at [163], citing: R v Yung [2017] NZHC 895 at [6]; and R v Yuen[2016] NZHC 571 at [15].17 R v Anchondo [2018] NZHC 1978.should be given a discount of between five and seven per-cent to recognise the greaterdegree of hardship imposed on him by serving a prison sentence in a foreignjurisdiction where he will be separated from support from his family, and also becausehis limited English would make service prison sentence disproportionately severe forhim.[21] Similarly, Mr McKenna initially submitted that a further discount would resultin the appellant receiving an end sentence that would make him eligible for a sentenceof home detention. However, at the hearing of the appeal Mr McKenna did not pursuethat submission and he accepts that should the appellant be given an additionaldiscount, he will not be eligible for a sentence of home detention.Respondent[22] Mr Harris for the respondent submits that the sentence imposed was within therange available to the Judge. Counsel acknowledges the Sentencing Act and severalCourt of Appeal cases which allow for a discount where the circumstances of theoffender would make imprisonment more onerous.18 Mr Harris submits however thatthe appellate guidance provides that hardship must be established to warrant adiscount,19 and he submits that there is no evidence before the Court that imprisonmentwill be disproportionately severe for the appellant. Mr Harris further submits that herethe hardships relied on by the appellant are "speculative". The Court of Appeal in R vChen, referred to by the Court of Appeal in Machado-Pereira which is cited and reliedon by Mr Harris, said:20 "deterrence will not be achieved if leniency is shown to thosewho run the risk of being imprisoned far from families."[23] Mr Harris notes that the appellant's offending is characterised by attacks to thehead, involving the use of a weapon, the presence of associates and harm to victims.18 Sentencing Act 2002, s 8(h); Machado-Pereira v R [2015] NZCA 423; and Fukofuka v R [2019]NZCA 290. In relation to any suggested hardship to the appellant's family, Mr Harris refers me toMcGregor v R [2015] NZCA 565. Mr Harris also refers me to an example of a successful"hardship" appeal to contrast against the present appeal: Zheng v R [2015] NZCA 451. Here (see[70]-[73]) where psychiatric reports outlined the appellant's demonstrable mental illness and thefact the appellant had recently self-harmed.19 Fukofuka v R [2019] NZCA 290 at [49].20 R v Chen [2009] NZCA 445, [2010] 2 NZLR 158 at [174]-[175].He submits that against the backdrop of the serious offending, whilst custody may bedifficult for Mr Singh it is a natural consequence for criminal offending of this kind.[24] Mr Harris in his written submissions said that Judge Clark did not apply anuplift to take account of the appellant's offending while on bail, however at the hearingof the appeal he accepted that that the Judge had taken that factor into account.[25] Mr Harris submits the sentence imposed was in range and has not been shownby the appellant to be manifestly excessive. He accordingly submits that the appealshould be dismissed.Approach on appeal[26] This first appeal against sentence is brought as of right under s 244 of theCriminal Procedure Act 2011. The Court must allow the appeal if satisfied that, forany reason, there is an error in the sentence imposed and that a different sentenceshould be imposed.21 Otherwise, the appeal must be dismissed.22[27] The Court on appeal does not simply substitute its own evaluation of theappropriate sentence. Rather, it must be satisfied there was an error "whetherintrinsically, or as a result of additional material submitted"23 on appeal, in the sensethat the end sentence was manifestly excessive having regard to ordinary sentencingprinciples,24 and only then determining whether another sentence should be imposed.25The focus in considering whether a different sentence should be imposed is on the endsentence imposed, rather than the process by which it is reached.26Discussion[28] As I have said, the respondent submitted that the Judge did not apply an uplifton account of the appellant's offending while on bail. In assessing the starting point21 Criminal Procedure Act 2011, s 250(2).22 Section 250(3).23 R v Shipton [2007] 2 NZLR 218 (CA) at [139], approved after the commencement of the CriminalProcedure Act 2011 in Tutakangahau v R [2014] NZCA 279 at [30].24 Tutakangahau v R [2014] NZCA 279 at [35]-[36].25 At [30]-[35].26 Islam v R [2020] NZCA 140 at [32].for that offending, the Judge listed its aggravating factors: "You were carrying anoffensive weapon, you were on bail and prepared to act in a violent way".27 The Judgewhen referring to the Pukekohe offending also said: "It is significant that at that timeyou were on bail for the first lot of Hamilton charges."28 Although he did not expresslyapply a discrete uplift for offending while on bail I consider it is nevertheless clearthat the Judge correctly included it in his assessment of the starting point for thePukekohe offending.[29] As I have noted Mr McKenna initially relied on Anchondo as authority for hissubmission that a 10 per-cent discount for serving a sentence in a foreign country fromhis family was also appropriate for the appellant. He said that as Mr Anchondo wasan American with presumably fluent English, the appellant deserved a higher discountto account for his greater expected hardship.[30] I note however that Lang J gave Mr Anchondo a 10 per-cent discount for thecombined factors of remorse, lack of previous convictions and distance from family.Referring to the distance from family factor, Lang J noted:29The latter factor can only be given limited weight, however, because as soonas you agreed to become involved in this enterprise you must have known thatyou ran the risk of going to prison in a foreign country for a significant period.I am prepared to provide an allowance of seven months, or around ten per-cent, to reflect these factors[31] I infer from Lang J's remarks that the discount he allowed for the additionalhardships resulting from imprisonment in a foreign country, would be modest andcertainly well below that being initially sought on the appellant's behalf. Judge Clarkgave Mr Singh discounts for remorse and lack of previous convictions, and Mr Singhdoes not challenge these.[32] Mr Harris relies on Machado-Pereira as showing that more obvious hardshipis required to be shown in order to justify a discount for hardship caused to an overseasnational serving a sentence of imprisonment in New Zealand. In that case thedefendant faced a long sentence, had no connection to New Zealand, and his mother27 New Zealand Police v Singh [2021] NZDC 2702 at [22].28 At [20].29 R v Anchondo [2018] NZHC 1978 at [23].was unwell.30 It was a drug importation case decided before Zhang and accordinglylittle weight was placed on personal mitigating factors.[33] Mr Harris also relies on McGregor v R, in which personal hardship was lessrelevant when sentencing for serious, premeditated violence. But again, that caseconcerned hardship for the defendant's family, rather than the defendant personally asis argued here.31[34] Fukofuka v R dealt with both hardship to the defendant's children, and hardshipfor the defendant if they were separated. Concerning the latter, the Court stated suchhardship was:32a natural consequence of serious criminal offending. This Court has saidthat dislocation from one's family, even in cases where the gulf of separationspans different countries, should only be take into account if there is evidencethat imprisonment will be disproportionately severe for a particular offender.In Mr Fukofuka's case, there is no such evidence. It follows that no discountfor this factor is available.[35] In de Macedo v R the defendant imported cocaine in exchange for an all-expenses-paid holiday to New Zealand. He too had no connection to the country,rudimentary English and no understanding of local culture or social norms.33 TheCourt of Appeal gave a discount of eight per-cent for this, from a 12-year startingpoint.34[36] In Sami v R, the defendant had killed a child in her care in circumstancesdescribed as being a momentary lapse of control and was convicted of manslaughter.35The Court of Appeal distinguished drug importation cases, and found there was littleneed for personal deterrence.36 She had been in New Zealand long enough to buildsome connections and perhaps aimed to make it her home.37 The Court found that30 Machado-Pereira v R [2015] NZCA 423 at [12].31 McGregor v R [2015] NZCA 565 at [46].32 Fukofuka v R [2019] NZCA 290 at [49].33 de Macedo v R [2020] NZCA 132 at [9]-[11].34 At [26].35 Sami v R [2019] NZCA 340, (2019) 29 CRNZ 252 at [64].36 At [66].37 At [67].Ms Sami "did present a distinctive combination of factors that merited recognition",38and the combination of these factors, namely: her youth,39 family abroad, and youngdaughter warranted a six-month discount.40[37] In Sami the appellant's "distinctive combination of circumstances"41 warranteda discount, and in each of the other the cases I have referred to, distinctivecircumstances were identified clearly causing hardship.[38] Mr McKenna also says that the appellant's limited ability with English is afactor that will make his serving a prison sentence disproportionately more severe forhim because of communication difficulties he may encounter. He submits that theappellant's limited ability with English is evident from the fact that he required aninterpreter at Court, however no evidence is presented in support of the submission.[39] While none of the cases Mr McKenna relies on deal with hardship caused by alanguage barrier, I note that the Court of Appeal addressed the issue in Chan v R.42 Inthat case the defendant was arrested for drug importation shortly after arriving in NewZealand. He had no family or friends in New Zealand, and very limited ability tocommunicate in English. His father died before sentencing and he expected never tosee his mother again. His wife and children lived overseas. The Court consideredthese combined factors warranted a discount of five per-cent.43[40] I consider that the fact that the appellant is to serve a prison sentence in aforeign country where he will be unable to access any family support from membersof his family in India, will make the serving of his sentence disproportionately moresevere for him than would be the case were he a permanent resident of New Zealand.In my view the appellant's limited ability with English is not a significant factor in thiscontext as the appellant has lived in New Zealand for more than three years, and whileit does not necessarily follow that he is able to speak English fluently, the fact that hehas been employed in a bakery business for most of that time where he has been38 At [67].39 She was 18 at the time. Mr Singh was 23 to 24 during his offending.40 Sami v R [2019] NZCA 340, (2019) 29 CRNZ 252 at [67].41 At [67].42 Chan v R [2020] NZCA 486.43 At [24].required to communicate in English means that it is unlikely that he would be unableto communicate adequately with prison staff.[41] I am however satisfied that the Judge erred by failing to address the issue ofthe effect of the appellant serving a prison sentence separated from the support of anymembers of his family. This is not a case of the kind referred to by Lang J in Anchondowhere the offending involved the defendant coming into New Zealand for the purposeof committing an offence knowing that if he was apprehended he would be facingimprisonment in a foreign country, and as a consequence the hardship of serving asentence in a foreign country could only be given limited weight. Here the appellanthad been residing in New Zealand pursuant to a visa which entitled him to undertakeemployment and the feature identified in Anchondo that led to only limited weightbeing given to the additional hardship of serving a sentence of imprisonment in aforeign country, separated from family support, does not apply.[42] I consider that the Judge ought to have specifically addressed the issue of theadditional hardship to the appellant of serving a term of imprisonment in New Zealandwithout any family support being available to him. I find that as it is a circumstancethat would cause the sentence to be served by the appellant to be disproportionatelymore severe for him than would otherwise be the case, the Judge erred by failing toaddress it and take it into account.[43] In my view this factor warrants allowing a further discount of five per-cent,which is two months of the starting point of 40 months' imprisonment adopted by theJudge. The deduction of that further discount yields an end sentence of 27 month'simprisonment.[44] I consider that a reduction of two months in relation to a 29 month sentence ofimprisonment is material and adjusting the sentence would not amount to"tinkering".44 I therefore find that the sentence of 29 months' imprisonment imposedby the Judge was manifestly excessive, and that a different sentence ought be imposed.44 Haereroa v R [2020] NZCA 169 at [33].[45] I shall accordingly allow the appeal and quash the sentence of 29 months andsubstitute a sentence of imprisonment of 27 months.Result[46] The appeal is allowed.[47] The sentence of 29 months imprisonment imposed by the District Court Judgeis quashed and I substitute a sentence of 27 months' imprisonment._____________Paul Davison J