SINGH V R [2017] NZCA 398

SINGH V R [2017] NZCA 398 [12 September 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA499/2016[2017] NZCA 398BETWEEN LAWRENCE MOHAN SINGHAppellantAND THE QUEENRespondentHearing: 28 August 2017Court: Harrison, Duffy and Williams JJCounsel: A J Maxwell-Scott and N P Chisnall for AppellantA J Ewing for RespondentJudgment: 12 September 2017 at 10.15 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is allowed.C The sentence of seven years' imprisonment is quashed and a sentence of six years' imprisonment is imposed.____________________________________________________________________REASONS OF THE COURT(Given by Harrison J)Introduction[1] The police charged the appellant, Lawrence Singh, with 41 counts of burglary.1 He pleaded not guilty to all charges. However, when his trial started in May 2016 before Judge Andrée Wiltens and a jury in the Manukau District Court, Mr Singh pleaded guilty to three of the charges. His trial proceeded on the remaining 38 charges. He was found guilty of 34 charges and acquitted of four charges. Judge Andrée Wiltens convicted and sentenced him to seven years'imprisonment.2[2] Mr Singh now admits his guilt on all 37 charges and appeals against his conviction and sentence on two grounds. The primary ground is that his trial counsel, Edward Faleauto Johnston, failed to advise him properly on the merits of the Crown case against him on the 34 counts on which he found guilty. As a result he lost an opportunity which he would have taken to plead guilty and obtain an appreciable sentencing discount against the appropriate starting point. His secondary ground is that the Judge adopted an excessive starting point of eight years'imprisonment and failed to make appropriate allowances for personal circumstances and an offer of reparations.[3] As noted, Mr Singh's appeal is against conviction and sentence. The appeal against conviction was apparently advanced to pre-empt questions raised by this Court in R v Hoo about the proper conceptual status of an appeal of this nature.3But the correct approach is that adopted by this Court in R v Patrick.4 The appeal should be addressed as an appeal against sentence only with the consequence that if Mr Singh's ground of challenge is made out we should allow the appeal and impose a substituted sentence. We can therefore dismiss the conviction appeal and address directly the underlying complaint that the sentence is manifestly excessive.1 Crimes Act 1961, s 231.2 R v Singh [2016] NZDC 14461 [Sentencing notes].3 Hoo v R [2017] NZCA 60 at [34].4 R v Patrick [2008] NZCA 115 at [31].Facts[4] The relevant facts are not now in dispute. Mr Singh committed the burglaries between May 2013 and August 2014. Under the cover of late evening or early morning, his standard mode of operation was to break and enter newly constructed but unoccupied houses in residential developments in Flat Bush, Auckland. He stole large, high-value home fittings — such as heat pumps, ovens and slider doors —which had been delivered to but not yet installed at the properties. The stolen goods came to a total value of about $60,000. Using his father's white Toyota Dyna truck— a distinctive model designed for commercial use — he transported the goods for storage at four residential properties which he or his parents owned or controlled.[5] In August 2014 the police located items stolen from 36 of the burglaries at the four properties connected to Mr Singh. The issue for trial was narrowed to whether he had burgled the goods or received them innocently from third parties. When interviewed by the police Mr Singh denied the offending. He gave elaborate exculpatory explanations for the location of many of the stolen goods at the properties to which he was linked. When separately stopped by a police officer while driving his father's truck carrying some of the stolen items, Mr Singh advised that he had acquired them from an inorganic collection. On another occasion he told the police that he had been robbed of the keys to his truck while out running one morning; and that the thieves had driven and abandoned his truck where it was found at one of the burgled properties. He sought to explain away highly incriminating footprints and text message evidence. He lied to his wife as well.[6] Mr Singh faced one insurmountable evidential obstacle: the police obtained a DNA analysis of blood samples from three of the burgled properties where theburglar had apparently cut himself while obtaining entry. The blood was Mr Singh's.He could not possibly explain away its incriminating effect. He accepted Mr Faleauto Johnston's advice on the morning of trial to plead guilty to these threecharges. He then unsuccessfully opposed the Crown's application to lead evidenceof his guilty pleas as propensity evidence at trial of the remaining charges.[7] In addition to the DNA propensity evidence, and the evidence of goods stolen from 36 burgled properties found at the four properties associated with Mr Singh, theCrown's circumstantial case against him on the remaining charges was strong if not overwhelming. His neighbours and own family members observed him frequently drive away in his father's truck during the evening and return with items to unload. For three burglaries, witnesses saw an Indian male driving a truck of the same description near the scene of the burglaries; while these witnesses could not identify that person, independent evidence established it was Mr Singh. And at the scenes of four burglaries, footprints were found consistent with Mr Singh's distinctivesneakers.DecisionCounsel's duty[8] Mr Singh's complaint is that he would have pleaded guilty to all charges if before trial Mr Faleauto Johnston had advised him that the Crown case was strong.[9] Both Messrs Singh and Faleauto Johnston swore affidavits and were cross-examined before us. It is unnecessary for us to make credibility findings. The critical facts are not in material dispute. Mr Singh is an intelligent young man who unfortunately suffered from a methamphetamine addiction which drove his offending. He committed all the burglaries to which he pleaded or was found guilty. Nevertheless, he maintained throughout an absolute denial of guilt. He lied repeatedly to the police and his family. He fabricated exculpatory explanations for apparently incriminating acts. He devised increasingly elaborate and farfetched denials of guilt. He was plainly determined to maintain his denials through to a defended trial in the hope that he would also be able to deceive the jury. There is no dispute that Mr Faleauto Johnston properly followed Mr Singh's instructions to prepare his defence accordingly.[10] However, while a lawyer must obtain and follow a client's instructions onsignificant decisions "in respect of the conduct of litigation", it is clear that "[t]hoseinstructions should be taken after the client is informed by the lawyer of the nature ofthe decisions to be made and the consequences of them".5 Furthermore, when takinginstructions including those relating to a plea, defence counsel must "ensure that hisor her client is fully informed on all relevant implications of his or her decision and must then act in accordance with the client's instructions".6[11] As Mr Chisnall submits for Mr Singh, this statutory duty practically translates into an obligation on counsel once in receipt of all the relevant evidence to advise his or her client of the strength of the Crown case and the likelihood of a conviction. It is implicit in this obligation that the advice must satisfy a standard of competence which is not determined with the benefit of hindsight but by the measure of whether the advice was reasonable in the circumstances known to counsel. Ms Ewing for the Crown accepts that cases of clear counsel error may justifiably found a sentence appeal for the reason that the defendant should have been advised to plead guilty.7 And if a defendant elects to maintain a not guilty plea, despite considered advice that the Crown case is strong, he or she is entitled to put the Crown to proof at trial with the risk of an inevitable conviction.[12] In summary, this three-stage inquiry is necessary: (a) did Mr Faleauto Johnston discharge his duty to advise Mr Singh competently on the merits of the Crown case; (b) if not, would Mr Singh have likely accepted competent advice to plead guilty; and (c) would a different sentence likely have been imposed?(a) Did counsel competently discharge his duty?[13] On 9 March 2016, about two months before the trial date, Crown counsel, Ned Fletcher, wrote to Mr Faleauto Johnston. The two lawyers had earlier discussed the case. Mr Fletcher repeated his satisfaction that there was sufficient evidence for the Crown to proceed with all 41 burglary charges. He outlined four categories of evidence to support each charge. He carefully explained his opinion that "there isstrong evidence in support of even those charges that engaged" only the fourth or weakest category of the evidence. He concluded with this observation:5 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 13.3.6 Rule 13.13.7 R v Tuumatavai (CA333/01, 5 December 2001); R v Patrick, above n 4.The sentence likely to be sought for this scale of burglary will warrant a 8–9 year starting point. Mr Singh will be entitled to a discount for an early guilty plea, although as you know this will diminish as we get closer to trial, especially as arrangements will need to be made to summons a large number of witnesses [111 in total].[14] Mr Faleauto Johnston did not apparently reply to this letter. On 6 April Mr Fletcher wrote to him again with "our resolution proposal". In answer to an issueraised informally by Mr Faleauto Johnston about the reliability of some evidence, Mr Fletcher gave four specific instances in answer. Mr Fletcher noted that, even if Mr Faleauto Johnston reasonably expected that a percentage of the charges would not be proved for reasons of evidential unreliability, the effect on sentencing was likely to be cancelled out by the loss of a guilty plea discount if Mr Singh went to trial; and that, on his assessment of the sentencing authorities, once a defendant has been sentenced on more than 15 to 20 charges "the starting point adopted by thecourt tends to plateau". Mr Fletcher reiterated the Crown's view that the evidence onall charges was strong but acknowledged Mr Singh's prerogative to defend thecharges if he wished. He offered to meet Mr Faleauto Johnston to find a resolution.[15] Mr Faleauto Johnston responded in writing within an hour. He was dismissive of Mr Fletcher's explanation. He expressed himself in absolute and unreasoned terms. He rejected any possible strength in the Crown case based onpropensity evidence. He described the majority of the charges as "weak", assertingthat the Crown case was "built on speculation and exaggeration of the few chargesyou could actually prove". He even described some aspects of the evidence as"pathetic". He did allow, however, for the possibility of guilty pleas to the three charges where the police had DNA evidence.[16] Mr Faleauto Johnston accepted before us that his letter correctly represented his opinion at the time; and that was the view he communicated to Mr Singh. He hasno record of forwarding Mr Fletcher's correspondence to Mr Singh or discussing it with him. Mr Singh denies any knowledge of the Crown's correspondence. We are satisfied that Mr Faleauto Johnston failed to take instructions from Mr Singh on the letter and the proposal.[17] Ms Ewing properly accepts that Mr Faleauto Johnston's opinion was wrong. But she submits that that judgment is only available with the benefit of hindsight where it is now easy to argue that conviction was inevitable. Based on comments by the Supreme Court majority in R v Sungsuwan, Ms Ewing submits that Mr FaleautoJohnston's conclusion was reasonably open in the circumstances.8[18] However, we accept Mr Chisnall's submission that Mr Faleauto Johnston'sopinion was so plainly wrong that no competent counsel could have given it. His opinion was not reasonably open to him. That judgment is not made with the benefit of hindsight but by the measure of the evidence then available. The Crown case was, as Mr Chisnall says, virtually unassailable.[19] In particular we are satisfied that Mr Faleauto Johnston failed to understand or appreciate the legal significance of Mr Singh's pleas of guilty to three of the charges and their consequential availability as propensity evidence. The probative value of that evidence was compelling. There was also the cumulative effect of findings of guilt on other charges. Before us, Mr Faleauto Johnston recognised the risk of the domino effect of the charges falling "like a pack of cards" once a guiltyverdict was reached on one — Mr Singh had, to the jury's knowledge, already pleaded guilty to three. While each charge required the jury's separate consideration, propensity reasoning was available to decide them. Mr Fletcher was correct that the forensic evidence of Mr Singh's footprints at seven addresses could not be answered.We have already referred to the witnesses who were able to link Mr Singh and his truck to the burgled premises, and to the burgled goods found at various properties which he occupied or with which he was associated. Also, when added together, Mr Singh's exculpatory statements painted such an improbable picture as to defy all credibility. His defence was hopeless, as a competent counsel should and would have appreciated and advised.[20] Ms Maxwell Scott challenged Mr Faleauto Johnston on his failure to prepare a brief of Mr Singh's evidence. Mr Faleauto Johnston explained that it was not hispractice to prepare a client's brief. Ultimately this failure was not decisive but it wassymptomatic of Mr Faleauto Johnston's failures to properly discharge his duty as8 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [66].counsel. We add that Mr Singh's election not to give evidence did not relieveMr Faleauto Johnston from his duty to test Mr Singh on the credibility of his explanations or point out to him that his elaborate exculpatory statements were unlikely to withstand scrutiny when measured against the weight of the Crown case.(b) Would Mr Singh have accepted competent advice?[21] Ms Ewing's fallback position was that, even if Mr Faleauto Johnston had properly discharged his duties and given Mr Singh competent advice, it was unlikely Mr Singh would have accepted it. She tested him carefully on this point in cross-examination before us. We acknowledge that Mr Singh was apparently intent on maintaining his denials of guilt. We accept that he took an active and affirmative part in preparing his defence. His attempts to persuade others, and himself, of his innocence were sustained.[22] However, we are not prepared to infer that Mr Singh would have rejected Mr Faleauto Johnston's advice if it had been given carefully and competently following receipt of Mr Fletcher's correspondence, if not before. Mr Singh'sacceptance of Mr Faleauto Johnston's belatedly correct advice to plead guilty to three of the charges is evidence that he would have accepted counsel's advice tofollow the same course with the other charges.[23] In our judgment Mr Faleauto Johnston's breach of his professional dutiesdeprived Mr Singh of the opportunity which he would have probably taken to plead guilty to the 37 charges for which he was found guilty. In that sense justice has miscarried.(c) Effect on sentence[24] The remaining issue for us is to evaluate the tangible effect, if possible, ofcounsel's error. That must be reflected in the likely reduction in the prison sentencewhich would have followed Mr Singh's guilty pleas, even if on the eve of trial.[25] Ms Maxwell Scott submits that the eight-year starting point adopted by Judge Andrée Wiltens was excessive.9 We disagree. Mr Singh burgled 37 properties over a 15-month period for commercial reward. His offending was carefully planned. By reference to other authorities in this Court, we are satisfied that the starting point was well within range.10[26] Judge Andrée Wiltens allowed these three discounting factors against the eight year starting point: (a) eight months for restrictive electronically monitored bail conditions for two years;11 (b) two months for cooperation with the Crown in admitting facts at trial;12 and (c) while it was not articulated, another two months apparently to recognise Mr Singh's belated guilty pleas to the three charges.13The end result was a sentence of seven years' imprisonment.14[27] We are satisfied that Judge Andrée Wiltens would likely have allowed Mr Singh a 15-per-cent discount against the starting point for late pleas at the start of trial, rounded up to 15 months' imprisonment. Against that must be balanced the fact that he was actually given a two-month credit for his pleas. Justice will be done if he is allowed a reduction of one year from the starting point.[28] Ms Maxwell Scott also submits that the Judge erred in not allowing specifically for Mr Singh's remorse, previous good character and offer to payreparation of $10,000. We do not accept this argument. The Judge had a proper evidential basis for finding that Mr Singh's protestations of remorse were belatedand insincere. His offending was not out of character. And the offer of reparation of $10,000 was negligible.[29] In any event, as Ms Ewing properly points out, the Judge erred in Mr Singh'sfavour in allowing an eight-month reduction for his restrictive bail conditions for two years before trial — the period was in fact seven months. So, to the extent that it might be argued the Judge should have allowed for personal mitigating factors,9 Sentencing notes, above n 2, at [12].10 See for example R v Brooking CA419/04, 7 March 2005 at [17]; and R v Andrian (1996) 13 CRNZ 449 (CA) at 453–454.11 Sentencing notes, above n 2, at [21].12 At [14].13 See [13].14 At [22].they are reflected in the additional four months' credit which the Judge erroneously allowed.[30] It follows that Mr Singh's sentence appeal should be allowed to the extent of allowing one year's reduction on the existing sentence of seven years' imprisonment. In allowing Mr Singh's appeal we emphasise that we would not have otherwise interfered with the sentence imposed by Judge Andrée Wiltens but for the failure by Mr Singh's counsel, of which the Judge was unaware, to advise competently on entering guilty pleas.Result[31] The appeal against conviction is dismissed.[32] The appeal against sentence is allowed.[33] The sentence of seven years' imprisonment is quashed and a sentence of six years' imprisonment is substituted.Solicitors:Crown Law Office, Wellington for Respondent