HARPREET SINGH KHANGURA v NEW ZEALAND POLICE [2018] NZHC 203

HARPREET SINGH KHANGURA v NEW ZEALAND POLICE [2018] NZHC 203 [21 February 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV2017-404-000462[2018] NZHC 203BETWEEN HARPREET SINGH KHANGURAAppellantAND NEW ZEALAND POLICERespondentHearing: 13 & 16 February 2018Counsel: N Baier and H Redwood for Appellant (13 February 2018)A Prasad and H Redwood for Appellant (16 February 2018)Judgment: 21 February 2018JUDGMENT OF DUFFY JThis judgment was delivered by me on 21 February 2018 at 2.15 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors/Counsel:Public Defence Service, AucklandMeredith Connell, Auckland[1] Following a Judge alone trial in the District Court before Judge Simpson, theappellant, Mr Harpreet Singh Khangura, was convicted on one charge of indecentassault1 and one charge of burglary.2 He was subsequently sentenced to two years andthree months' imprisonment.[2] Mr Khangura now appeals against that sentence.Factual background[3] At the relevant time Mr Khangura lived in an apartment complex in centralAuckland. The victim, the complainant, lived at the same apartment complex. Sheand Mr Khangura did not know each other.[4] At around 8pm on 29 March 2017, Mr Khangura saw the complainant walkingalong Queen Street. He followed her to the apartment complex where they both live.He entered the building and got into the lift at the same time as the complainant. Heexited the lift at the 8th floor where the complainant's apartment is located.[5] Mr Khangura followed the complainant to the door of her apartment where hetold her, "You look so sexy."[6] The complainant ignored him and began unlocking the front door.Mr Khangura grabbed the complainant's arm with both hands and pulled her awayfrom the door. The complainant managed to free herself and went inside herapartment.[7] She then tried to shut the door, but could not because Mr Khangura was tryingto push it open from the outside. A struggle over the door ensued for roughly oneminute. The complainant called for help from a flatmate.[8] During the struggle, Mr Khangura reached inside the door with one hand andsqueezed the complainant's buttock over her clothes.1 Crimes Act 1961, s 135; maximum penalty seven years' imprisonment.2 Crimes Act 1961, s 231; maximum penalty ten years' imprisonment.[9] The complainant abandoned the door and fled to her flatmate's bedroom. Herflatmate emerged from an en-suite bathroom adjoining the bedroom. The complainanthid behind him. Mr Khangura entered the bedroom, saw the flatmate and then left theapartment.[10] Mr Khangura returned to the apartment shortly afterwards to apologise. Heknocked on the door which was answered by the complainant's flatmate.Mr Khangura apologised to him and explained that he had followed the complainanthome because he thought she was attractive. He then left and returned to hisapartment.District Court Decision[11] Judge Simpson adopted a starting point of two years and six months'imprisonment. A discount of three months was given to reflect Mr Khangura's ageand remorse.[12] The Judge acknowledged that Mr Khangura was affected by alcohol, but didnot consider that he was so affected that he was unable to control himself. The Judgealso rejected the submission that Mr Khangura was forced to drink by other people.[13] Despite the probation officer recommending home detention and communitywork, Judge Simpson said that a period of imprisonment was the most appropriatesentencing response to this manner of offending. In reaching this conclusion, theJudge had regard to the seriousness of offending which involves home invasion.Grounds of Appeal[14] Mr Khangura appeals against his sentence on the ground that the sentenceimposed by the Judge was manifestly excessive due to the following two errors:(a) The adoption of a starting point which was manifestly excessive; and(b) The failure to provide credit for previous good character.Appellant's submissions[15] Mr Khangura submits that the starting point adopted by Judge Simpson wasexcessive. Attention is drawn to several cases which are said to involve more seriousoffending.3 He submits that each of these cases involves:(a) A higher level of premeditation;(b) More time spent within the property;(c) More serious indecent assaults;(d) Offending that took place while the victims were asleep;(e) A higher degree of victim vulnerability and breach of trust.[16] In each of these cases, the Judge found a sentence starting point of betweentwo years and three months' and two years and six months' imprisonment.[17] Mr Khangura also submits that the Judge erred in not providing credit for hisprevious good character under s 9(2)(g) of the Sentencing Act 2002. Regard was hadto Rana v R, which states that lack of previous convictions is evidence of previousgood character and must be taken into account if applicable.4[18] Finally, Mr Khangura submits that if his submissions are accepted by the Court,the end sentence would be within the range of an electronically monitored sentence,and that home detention would be an appropriate outcome. He submits such a sentencewould meet the purposes and principles of sentencing and also would be in line withthe recommendations of the Provision of Advice to Courts (PAC report).3 R v Ielemia CA405/01, 14 March 2002; Penitani v Police [2014] NZHC 1622; Palalagi v Police[2015] NZHC 1832.4 Rana v R [2014] NZCA 468 at [16].Respondent's submissions[19] The respondent submits that the starting point adopted by Judge Simpson wasstern but not excessive.[20] Regard is had to Senior v Police as authority for the proposition thatconfrontation of the occupiers of a home is an aggravating factor for burglary.5 Therespondent emphasises the fact that Mr Khangura forced entry into the complainant'sapartment.[21] It is acknowledged that the nature of Mr Khangura's indecent assault is lessserious than those in the cases cited by him. However, the respondent argues that theforcefulness of his entry into the apartment places his offending on a similar tier ofseriousness.[22] In terms of a discount for previous good character, the respondent submits thatthis is a matter of discretion for the sentencing judge. In any case, it is submitted thattaking into account the totality of the offending, a final sentence of two years and threemonths is appropriate.Appeal against sentence[23] Section 250(2) of the Criminal Procedure Act 2011 states that the Court mustallow the appeal if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[24] In any other case, the Court must dismiss the appeal.65 Senior v Police (2000) 18 CRNZ 340 (HC).6 Criminal Procedure Act 2011, s 250(3).[25] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2)was not intended to change the previous approach taken by the courts under theSummary Proceedings Act 1957.7 Further, despite s 250 making no express referenceto "manifestly excessive", this principle is "well-engrained" in the court's approach tosentence appeals.8AnalysisStarting point[26] Has Judge Simpson made an error in deciding to adopt a starting point of twoyears and six months' imprisonment? I have been referred to a number of casesinvolving burglary and indecent assault.9 To this list I might add R v Wainohu.10 Ineach case, a sentence starting point of two years and three months or two years and sixmonths was adopted.[27] The guidance provided by these cases is useful, but I note that Mr Khangura'soffending does not fit neatly into the same mould of offending. This mould can bedescribed roughly as the following: the offender sneaks into the victim's home,commits an indecent assault upon them as they sleep, and then flees when they wakeup.[28] In a sense, Mr Khangura's offending is both more and less serious.[29] Mr Khangura's offending is more serious due to the manner in which heentered the complainant's home. Those committing burglary often enter the propertyin a clandestine manner. Mr Khangura, however, forced his way inside despite thecomplainant's best efforts to keep him out. Actual confrontation of the occupiers isregarded as an aggravating feature of burglary.11 This is because it is seen to heightenthe sense of violation felt by victims, and damage the feelings of security theyassociate with their homes.7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].8 At [33], [35].9 R v Ielima CA405/01, 14 March 2002; Penitani v Police [2014] NZHC 1622; Palalagi v Police[2015] NZHC 1832; R v King [2013] NZHC 3362.10 R v Wainohu HC Hamilton CRI-2006-019-4772, 16 February 2007.11 R v SMF [2013] NZHC 2841 at [21]; Senior v Police (2000) 18 CRNZ 340 (HC).[30] Mr Khangura's entry into the complainant's home was both forceful andprotracted. In this sense, it could be regarded as more serious than the offendinginvolved in the cases I have been referred to.[31] On the other hand, Mr Khangura's offending is less serious because of thenature of the indecent assault. The offending in the referred cases involved skin-on-skin contact. It also often occurred when the victim was asleep, heightening the degreeof vulnerability.[32] Mr Khangura's indecent assault consisted of him grabbing the complainant'sbuttock over her clothing. This manner of indecent assault has been regarded as "lowon the scale of seriousness".12 However, that does not mean it should be disregarded.The case R v SMF involved a similar indecent assault taking place within a burglary,and noted the "element of home invasion and the additional impact as a consequencefor the victims".13[33] While the element of home invasion is implicit in the burglary charge, theadditional impact of the indecent assault on the complainant should be taken intoaccount. Although the physical contact itself was minor, it should be regarded in thebroader context of the offending. This includes the sexual advance made towards thecomplainant by Mr Khangura outside the door and the forcefulness of his entry intoher apartment. Overall, the incident of the indecent assault formed part of a sexualelement in the offending and no doubt would have increased the sense of distress andviolation felt by the complainant.[34] Although the indecent assault was less serious than those involved in theguiding cases, I do not think that it should be dismissed as unimportant.[35] There may be some discrepancy between the seriousness of Mr Khangura'sindecent assault and the indecent assaults in the cases referred to me. But anydiscrepancy in the seriousness of the offending overall is more than made up for bythe forceful and protracted nature of Mr Khangura's entry into the complainant's12 R v SMF [2013] NZHC 2841 at [25].13 R v SMF [2013] NZHC 2841 at [25].apartment. I consider that this confrontation places Mr Khangura's offending on asimilar level of seriousness as the offending involved in the cases to which I have beenreferred.[36] In the circumstances, I do not believe Judge Simpson made an error in adoptinga sentence starting point of two years and six months' imprisonment. It was at theupper end, but still within the range that was open to her.Discounts for remorse and age[37] Judge Simpson reduced the starting point by three months to reflectMr Khangura's age and remorse. This was a discount of 10%. I consider a higherdiscount for remorse is warranted. Mr Khangura expressed remorse to the victimshortly after the incident. Further, Mr Khangura was interviewed by police at 11.47pm on the night of the incident. He admitted the indecent assault and said he wassorry. He denied entering the victim's apartment, but he did admit pushing against theentrance door. At the end of the interview he was arrested for indecent assault.[38] The day after the case review hearing a sentencing indication was sought fromJudge Ronayne. The indication was well outside the range of available sentences.14The starting point was four years' imprisonment with a 20% discount for a guilty plea.Given the range of starting points to which I have already referred the indicatedstarting point was manifestly excessive. Ms Prasad submits that once Mr Khanguralearned of this outcome he became scared and did not want to admit anything. Hisgrandparents, who have been his primary caregivers all his life, live in India. He isclose to them and telephones them regularly. A sentence of imprisonment would notpermit him to maintain that contact.[39] He is a young man who is new to this country and he has not offended before.I can understand that the prospect of a sentence of just over three years imprisonmentwould have been very daunting for him. Ms Prasad submitted that had a starting pointof two years' imprisonment been indicated, that, coupled with the discount for a guiltyplea, would have been accepted. Taken together with other available mitigation14 New Zealand Police v Khangura CRI 2017004-003263, 7 July 2017.discounts the end sentence would have left open the option of a non-custodialsentence.[40] Usually the entry of a guilty plea is an indicator of remorse. It is more difficultto persuade a Court an offender is remorseful when the charges have been defended.However, here there is a reasonable and acceptable explanation for why Mr Khangurawent to trial. I consider that his conduct shortly after the offending is consistent withgenuine remorse. In such circumstances I consider that the 10% discount he receivedfor remorse and age was insufficient. I consider the more appropriate discount forthese factors is one of 12.5%.Previous good character[41] I must now consider whether Judge Simpson erred in not applying a discounton account of Mr Khangura's previous good character as evidenced by his lack ofconvictions.[42] Previous good character is listed as a mandatory consideration under theSentencing Act.15[43] It is submitted that following R v Rana, a discount of roughly eight percent isan appropriate adjustment to make when dealing with offenders with no previousconvictions.16 The lack of previous convictions is regarded not as the lack of anaggravating factor, but rather as a mitigating factor in its own right. In the context ofburglary, lack of previous convictions has been found to be of some credit to theoffender.17[44] In light of the relevant law, I consider that Judge Simpson erred by not applyinga discount to reflect Mr Khangura's previous good character. In reaching thisconclusion I have had regard to Mr Khangura's lack of prior convictions and the factthat his wife and flatmates have written letters testifying to his good character.15 Sentencing Act 2002, s 9(2)(g).16 Rana v R [2014] NZCA 468 at [16]. See also Ashby v Police [2015] NZHC 1900.17 R v Epere [2014] NZHC 117.[45] I consider that a discount of seven-and-a-half percent is appropriate in thecircumstances. This amounts to a total discount of 20% which brings the sentencedown to one of two years' imprisonment.[46] The sentence I have reached renders Mr Khangura eligible for a non-custodialsentence. The PAC report says he has a low risk of reoffending. The impression Igained from watching his evidential video was that he was a young man who had actedwithout realising the seriousness of his conduct at the time, that he later had thisunderstanding and regretted his actions. The PAC writer recommended a sentence ofhome detention and community work. I consider such a combination of sentences tobe sufficient to meet the circumstances of this case. It provides an appropriate balancebetween the need for denunciation and deterrence as well as the need to take accountof rehabilitation and to impose the least restrictive sentence possible.[47] In R v Hill the Court of Appeal recognised the public interest advantages of asentence of home detention in comparison with a short sentence of imprisonment: 18[33] The sentence of home detention reflects a perception that society'sinterests are better served in some cases by the imposition of restrictions onliberty through home detention rather than through imprisonment. Theexplanatory note at p 5 identifies the "acknowledged advantages" of homedetention as including "low rates of re-conviction and re-imprisonment, highcompliance rates, and positive support for offenders' reintegration andrehabilitation".I consider the views expressed in Hill to be relevant here.[48] The PAC report stated the proposed home detention address is suitable and theoccupants agree to Mr Khangura serving a sentence of home detention from thataddress.[49] Accordingly, a sentence of 10 months home detention and 100 hourscommunity work will best serve society's interests. The duration of the sentence takesinto account the two months' imprisonment that Mr Khangura has presently served.The standard home detention conditions are imposed as are the following specialconditions recommended in the PAC report:18 R v Hill [2008] 2 NZLR 381 (CA).1. Not to possess, consume or use any alcohol or drugs not prescribed tohim2. To attend and complete an appropriate substance abuse programme tothe satisfaction of a probation officer. The specific details of theappropriate programme shall be determined by a probation officer.3. Not to associate with or contact the victim without the prior writtenapproval of a probation officer.4. To attend and complete an appropriate programme to the satisfactionof a probation officer. The specific details of the appropriateprogramme shall be determined by the probation officer.Result[50] The appeal against sentence is allowed. The sentence of imprisonment is setaside and in its place Mr Khangura is sentenced to 10 months' home detention withthe above conditions and 100 hours community work.[51] The sentence is to be served at the home detention residence of 1759C GreatNorth Road, Avondale, Auckland. On release from prison Mr Khangura is to traveldirectly to 1759C Great North Road, Avondale, Auckland and wait for a security guardto connect the home detention equipment.