SINGH v R [2021] NZCA 647

SINGH v R [2021] NZCA 647 [3 December 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA560/2021[2021] NZCA 647BETWEEN JASPREET SINGHAppellantAND THE QUEENRespondentHearing: 8 November 2021Court: Collins, Duffy and Dunningham JJCounsel: J C Harder for Appellant C P Paterson and J Kang for RespondentJudgment: 3 December 2021 at 9.30 amJUDGMENT OF THE COURTA The application to adduce further evidence is granted.B The appeal is allowed.C The conviction and sentence are quashed.D The matter is remitted back to the District Court for reconsideration of whether the appellant should be discharged without conviction.____________________________________________________________________REASONS OF THE COURT(Given by Duffy J)[1] The appellant, Jaspreet Singh, was convicted and sentenced in the Auckland District Court before Judge Thomas,1 having pleaded guilty to one charge of male1 Police v Singh [2021] NZDC 18597.assaults female.2 Mr Singh sought a discharge without conviction, which the Judge refused.3 Mr Singh now appeals against the refusal to discharge him without conviction, which is classified as an appeal against conviction and sentence.[2] Mr Singh contends three important matters were not before Judge Thomas. First, Mr Singh was not sentenced on the correct summary of facts and so he seeks to present the correct version. The Crown acknowledges this error, but contends that it is not material. Second, there are various concerns about the victim impact statement. Mr Singh seeks to adduce new evidence relevant to this matter, and we will say more about this later. However, we are satisfied this new evidence should be admitted.4 We see no need to deal with the third matter because the first two matters are enough to allow us to dispose of the appeal. We are satisfied the process before Judge Thomas has miscarried and that the appeal should be allowed, with the application for discharge without conviction being remitted to the District Court for fresh consideration.5 Our reasons follow.[3] Mr Singh initially faced two charges of male assaults female. Both charges arose from one incident on 29 December 2019. Mr Singh was at home with his wife. They argued. Mr Singh was alleged to have picked up a sandal and struck her twice on the leg (first charge), and then slapped her face with an open hand (second charge).[4] On 29 March 2021 Mr Singh appeared in the District Court. The second charge was withdrawn. Mr Singh's counsel, Mr Harder, entered a guilty plea to an amended charge notice with one charge of male assaults female. An amended summary of facts was attached to the amended charge notice. It stated that Mr Singh had picked up a sandal and hit the victim once on the leg. No conviction was entered at this time at Mr Harder's request, as an application for a discharge without conviction was foreshadowed.2 Crimes Act 1961, s 194(b): maximum penalty two years' imprisonment.3 Mr Singh was sentenced to 12 months' supervision.4 Based on the principles governing admission of evidence set out by this Court in R v Bain [2004] 1 NZLR 638 (CA) at [22] and the Privy Council in Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [117]–[120].5 An appeal against refusal to discharge without conviction is treated as a composite appeal against conviction and sentence with one of the possible outcomes being remission back to the first instance court for fresh consideration: see B v Police [2021] NZCA 16 at [61]; and Criminal Procedure Act 2011, s 251(2)(c).[5] The fact the Judge proceeded in reliance on the wrong summary of facts may not have been enough in this case to affect the outcome of the appeal. However, there were further errors. They arose from the victim impact statement that was available to the Judge, his comments in respect of that statement and the failure by police to provide him with an updated version. The combined effect of all the errors raises real concerns about whether the Judge was in a position to properly assess whether the consequences of a conviction were out of all proportion to the gravity of the offending.6[6] Immediately after the incident the victim called the police, and Constable Gardner arrived at the couple's apartment approximately 15 minutes later. The victim completed an evidential video interview (EVI) at the police station later that day.[7] Mr Singh was arrested by Constable Guo on 31 December 2019, taken to the police station and interviewed. The same day, Constable Gardner prepared a victim impact statement. This statement is brief and says nothing about the incident. It records the victim saying she felt bad having taken a stand against her family to marry Mr Singh and then finding he was abusive towards her. She also said she was now living with her father and she wanted to withdraw the complaint. The victim did not sign this statement. Instead Constable Gardner signed for her. There is provision for a police officer to sign a victim impact statement when it is not practicable for the victim to sign it. However, here the victim was present at the police station two days earlier when she gave her EVI. No explanation is available for why she could not have signed the victim impact statement two days later, or why it was even necessary for Constable Gardner to prepare a victim impact statement at that time, when Mr Singh was yet to enter a plea.[8] The new evidence is an email chain attached to a memorandum from appellant counsel. It shows that on 4 May 2021 Constable Gao contacted the victim to advise her that Mr Singh had been convicted of the charge male assaults female and was due to appear in court for sentencing on 11 June 2021. The email advised that Constable Gao was "tasked to request your Victim Impact Statement prior to that date". The next6 Sentencing Act 2002, s 107.day the victim emailed Constable Gao an updated victim impact statement. The statement is extensive. It advises Constable Gao that the victim is pregnant and requiring regular check-ups and regular visits to medical practitioners. She says she is facing a "very hard time of [her] life" and she "really need[s]" Mr Singh with her at this time. She says all she wants is for Mr Singh to be with her. Further, their daughter is missing him. She says she forgives "everything whatever happened" between her and Mr Singh and at the time she recorded her EVI it was a "very emotional time" for her.[9] The victim advised Constable Gao that the family difficulties (her father's family was against the marriage) have been resolved. The respective families now want her and Mr Singh to have a chance at a better future with their children. She states that she supports Mr Singh being discharged without conviction if possible. This is because it was feared that a conviction would jeopardise his chances of appealing against a decision of the New Zealand Immigration Service, which could see him deported.[10] The updated information the victim provided to Constable Gao on 5 May 2021 was not given to Judge Thomas. The sentencing proceeded on the basis of the very brief original victim impact statement Constable Gardner had obtained on 31 December 2019.[11] The sentencing notes refer to Mr Singh striking the victim twice on the leg with a sandal, which suggests the Judge may have been looking at the first summary of facts and not the amended summary. Second, the Judge described in some detail at [2] and [3] of the sentencing notes the consequences of the offending for the victim, stating as follows:7[2] We have heard a lot about what the consequences for you have been as a result of all of that and what they might be in the future. What we have not talked a lot about today is the consequences for her. This is the one person that you were supposed to make sure came to no harm. This was the one person, before your kids came along, you were supposed to ensure would be happy and safe and who could trust you. You were not supposed to become the person that she feared. When someone in your position attacks someone in her position the harm does not come from the bruises. The harm comes7 Police v Singh, above n 1.from the abuse of that trust. She no longer trusts you to be what she hoped you would be when she married you because she knows what you can become.[3] She knows that anyone can be like that. It is going to be hard for her to trust anybody now, right? Because if you can do this to her then anybody can do that to her. That is the real harm that you cause. That is why there will always be a strong response to any violence against an intimate partner.[12] Later at [6] of the sentencing notes the Judge refers to the impact of the offending on the victim as part of his consideration of the gravity of the offending relevant to the question of a discharge without conviction.[13] The description the Judge gives of the impact of the offending on the victim does not reflect in any way what is stated in the victim impact statement dated 31 December 2019 that was before him. Nor is his impression of the harm caused to the victim supported by any other material relevant to the offending. The erroneous impression he held was compounded by the police failure to provide the Judge with an updated victim impact statement based on the victim's email of 5 May 2021 to Constable Gao. Had this more informative material been before the Judge he may have avoided the error he made.[14] We consider the Judge's approach to the conviction and sentence of Mr Singh may have been materially different had the Judge had the benefit of the amended summary of facts and a full picture of the victim's feelings about the offending. We are satisfied the Judge proceeded on the basis of incorrect information. He has drawn inferences about the harm the offending caused the victim which were not supported by the information available to him, and which the new evidence available to us shows to be wrong.[15] This warrants fresh consideration of whether Mr Singh should be discharged without conviction with the District Court Judge being provided with an updated victim impact statement that accurately presents the harm done to the victim. We further consider this can best be achieved if the victim impact statement is signed by the victim rather than by the police officer who prepares it.Result[16] The application to adduce further evidence is granted.[17] The appeal is allowed.[18] The conviction and sentence are quashed.[19] The matter is remitted back to the District Court for reconsideration of whether the appellant should be discharged without conviction.Solicitors:Crown Solicitor, Auckland for Respondent