SINGH v R [2022] NZCA 23

SINGH v R [2022] NZCA 23 [21 February 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA547/2021[2022] NZCA 23BETWEEN JASWINDER JASS SINGHAppellantAND THE QUEENRespondentHearing: 14 February 2022Court: Kós P, Peters and Palmer JJCounsel: A Osama and S McKenna for Appellant H D L Steele and D S Houghton for RespondentJudgment: 21 February 2022 at 10 amJUDGMENT OF THE COURTA The application to adduce fresh evidence is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Palmer J)What happened?[1] Mr Jaswinder Singh, aged 28, was part of a SIM-swapping scheme. Others co-opted phone numbers and accessed the bank accounts of unsuspecting victims. Money was transferred into accounts operated by people known as "primary mules". Then "secondary mules", including Mr Singh, would withdraw cash from those accounts in smaller amounts. Mr Singh made or attempted to make20 transactions in total, on 6 December 2019, 20 December 2019 and 3 February 2020. He acquired $23,000, which he was to pass on. Mr Singh did not know the primary mules. He suspected something untoward was going on. The Department of Corrections reports that Mr Singh said he was given $500 "maybe once or twice for making these transactions".[2] Mr Singh pleaded guilty to a representative charge of dishonestly using a document under s 228(1)(b) of the Crimes Act 1961. He applied for a discharge without conviction. On 30 July 2021, in the District Court at Auckland, Judge E M Thomas declined the application. 1 He held:(a) The offending carries a maximum penalty of seven years' imprisonment, involved repeat offending and there was a significant sum of money involved. 2 Both parties referred to a potential starting point of 18 months' imprisonment.3 Mr Singh's circumstances reduced the gravity of the offending to "somewhere around the high end of low or the low end of moderate" because of his: lack of previous convictions; otherwise good character; genuine remorse; guilty plea; and willingness to make reparation. 4(b) There was no evidence Mr Singh's employment as a personal assistant was in jeopardy, given his employer's support of him. 5 Mr Singh's risk of deportation and ability to have his essential skills work visa renewed was an issue for immigration officials with which the Court would not ordinary get involved. 6(c) Accordingly, the direct and indirect consequences of conviction were not out of all proportion to the gravity of the offending.71 R v Singh [2021] NZDC 15371 at [13].2 At [6].3 At [7].4 At [8]–[9].5 At [10].6 At [11].7 At [13].[3] Mr Singh was convicted and sentenced to 12 months' supervision and to pay reparation of $23,000. 8[4] Mr Singh appeals the District Court's decision to decline his application for discharge without conviction.Fresh evidence[5] Mr Singh seeks leave to file fresh evidence by way of affidavits by: himself; an immigration expert, Mr Simon Laurent; and his employer. The Crown does not object to the first two but does object to the employer's affidavit which it submits is not fresh and is of limited cogency. We admit all three affidavits. We consider the employer's affidavit contains some additional cogent evidence. 9 Altogether, the evidence is:(a) Since his conviction, Mr Singh has paid the $23,000. He was served with a Deportation Liability Notice (DLN) by Immigration New Zealand, and was advised by one of its officers that, if his conviction is "overturned", his liability may be cancelled. The Immigration and Protection Tribunal declined his humanitarian appeal but extended his visa until 22 August 2022. If he is deported, Mr Singh says he will lose the life he has established in New Zealand over the last six years, will be forced to go back to India, which is ravaged by COVID-19, and will have to rely on the support of his parents, to whom he already owes $17,000. He has also been cooperative with the police.(b) Mr Laurent considers that Mr Singh would be liable for deportation under s 157 of the Immigration Act 2009 if he is convicted and Mr Singh may also be liable for deportation if he is discharged without conviction. That is because deportation is based on the offending and the guilty plea, rather than the conviction. But Mr Laurent considers that, if the Court overturns the conviction, the stated basis for the8 At [16]–[17].9 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].service of the DLN falls away and Mr Singh may be able to obtain a further work visa.(c) Mr Singh's employer explains that a contract with New Zealand Post restricts him from employing people with convictions so the termination of Mr Singh's employment with his company is inevitable if the conviction is not overturned.Submissions[6] Mr Osama, for Mr Singh, submits the gravity of the offending was low, taking into account his naïvety and gullibility and his full cooperation with the police. Mr Osama submits three real and appreciable risks flow from Mr Singh's conviction: deportation, which would have a devasting impact on his health, finances and emotions; the likelihood of not being granted another visa; and termination of his employment. Mr Osama submits these consequences are out of all proportion with the gravity of the offending.[7] Ms Houghton, for the Crown, submits the Judge did not err in his assessment of the gravity of the offending, which involved repeated dishonest conduct on three occasions and a significant sum of money. She submits the consequences of conviction, while serious, are the predictable and foreseeable consequences of deliberate and persistent criminal offending, with which they are not out of all proportion.Should Mr Singh be discharged without conviction?[8] This is an appeal against conviction and sentence.10 Under s 232(2) of the Criminal Procedure Act 2011, we must allow the appeal if satisfied a miscarriage of justice has occurred by virtue of a material error in entering the conviction or in applying s 107 of the Sentencing Act 2002. 11 Otherwise, we must dismiss the appeal.10 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.11 At [12].In essence, we need to decide whether we consider the District Court's decision was wrong. 12[9] Section 107 of the Sentencing Act requires that the Court must not discharge an offender without conviction "unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence". This involves establishing the gravity of the offending, the consequences of conviction and whether the latter are out of all proportion to the former. 13 It remains open to the Court to decline to exercise its discretion to grant a discharge even if that test is satisfied.14[10] We agree with the Judge that the gravity of Mr Singh's offending lies towards the high end of low. Mr Singh acted deliberately on three occasions over almost two months to withdraw money from bank accounts in a manner that, at the least, he knew to be suspicious. We do not accept he was particularly naïve, vulnerable or duped, as was Mr Dawick who was described as a "simpleton" in a case to which Mr Osama refers. 15 He was not driven by need. Mr Osama acknowledges that Mr Singh would not have pleaded guilty if he was completely innocent. We agree with Ms Houghton's submission that it is artificial to say Mr Singh would not have appreciated the dishonesty of what he was doing. Mr Singh's cooperation with the police is relevant to his sentence, rather than to the issue of discharge.[11] We understand that Mr Singh will likely be deported if his conviction stands and may not have his visa renewed. But, on the basis of s 157 of the Immigration Act, and Mr Laurent's evidence, there appears to be a good chance Mr Singh would be deported on the basis of his offending, even if he were granted a discharge. The current terms of the DLN, which were drafted after the conviction, would not constrain it from being reviewed. We note that, since Mr Laurent provided his affidavit, the Immigration and Protection Tribunal has granted Mr Singh an open class visa until12 R v Rajamani [2007] NZSC 68, [2008] 1 NZLR 723 at [5], as cited in R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]. See also Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].13 R v Hughes, above n 12, at [16]–[17], referring to Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) at 241–242.14 At [10] and [12].15 R v Dawick HC Hamilton CRI 2005-419-122, 2 May 2006 at [24].22 August 2022, to allow him to continue to work in New Zealand to repay some of his debts.16[12] No doubt leaving New Zealand, and consequently his employment here, would be a seriously inconvenient consequence for Mr Singh. But we consider that derives from Mr Singh's offending, rather than from his conviction. As Ms Houghton submits, the consequences of deportation for him do not involve separation from family as would have occurred in other cases where appeals were allowed. 17 He appears to remain close to his family in India. And the consequence of loss of employment in a trusted role in New Zealand flows naturally from the sort of offending in which Mr Singh engaged.[13] We do not consider the Judge erred. We do not consider the consequences of Mr Singh's conviction are out of all proportion with the gravity of his offending.Result[14] We dismiss the appeal.Solicitors:McKenna King, Hamilton for AppellantCrown Solicitor, Auckland for Respondent16 Re Jaswinder Singh [2021] NZIPT 505457 at [29]–[31].17 See, for example, Rahim v R [2018] NZCA 182; R v Tang [2019] NZHC 2056; and Bong v R[2020] NZCA 94.