SINGH v NEW ZEALAND POLICE [2019] NZHC 3001

SINGH v NEW ZEALAND POLICE [2019] NZHC 3001 [18 November 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-0433[2019] NZHC 3001BETWEEN NAVJOT SINGHAppellantAND NEW ZEALAND POLICERespondentDate of hearing: 18 November 2019Appearances: H G de Groot for Mr SinghG J Fraser for the respondentDate of judgment: 18 November 2019ORAL JUDGMENT OF JAGOSE JCounsel/Solicitors:Hunter de Groot, Matai Chambers, AucklandGeorgiana Fraser, Meredith Connell, Auckland[1] Navjot Singh appeals his sentence of eight months' home detention imposedby Judge N R Dawson in the District Court at Auckland on 20 September 2019,1following Mr Singh's guilty plea to charges of dishonest use of a document with intentto obtain a pecuniary advantage,2 and obtaining property by deception.3Background—offending[2] Mr Singh was employed by an architecture firm as its information technologymanager in 2017. Several cheque forms were taken from the firm's office over theChristmas break. On 8 and 9 February 2018, a co-offender registered a company andopened a bank account in its name. On 21 February 2018, one of the firm's chequeswas made out to the company for $80,000, forging the firm's office manager'ssignature. Mr Singh presented the cheque for payment to the company's account on22 February 2018. But the office manager noticed the withdrawal and, recognising thecompany was not one of the firm's suppliers, instructed the bank to reverse thepayment.[3] On 31 May 2018, Mr Singh's employment by the firm was terminated. On 10August 2018, Mr Singh went to a computer shop in Auckland. He purchased acomputer (valued at $2,875) on the firm's account, using a purchase order number hepreviously was authorised to use as its employee.—District Court decision[4] I note Mr Singh initially declined to sign the consent required for anelectronically monitored sentence, because he would lose his new employment. JudgeDawson advised, unless he consented, he would be sentenced to imprisonment.Sentencing was adjourned to allow Mr Singh to sign the necessary documents.[5] Judge Dawson treated the dishonest use of a document charge as the leadoffending, justifying a starting point of 18 months' imprisonment. He uplifted that by1 Police v Singh [2019] NZDC 19096.2 Crimes Act 1961, s 228(a).3 Sections 240(1)(a) and 241(a).two months for the obtaining property by deception charge, taking into account thetotality principle. From the adjusted 20-month starting point, the Judge deducted onemonth for remorse (despite querying the extent of Mr Singh's remorse)4 and a furtherthree months to account for Mr Singh's guilty plea, bringing the sentence to 16 months'imprisonment.[6] The Judge commuted the sentence to eight months' home detention,5 notingthere was no actual loss to the firm due to the vigilance of its office manager. TheJudge applied the conditions listed in the probation report and added the additionalcondition Mr Singh be permitted to work. The sentence was suspended until 26September 2019 to allow Mr Singh to attend a work trip to Wellington. A reparationorder of $2,875 to the firm was confirmed.Approach to appeals against sentence[7] I must allow the appeal only if I am satisfied both there is an error in thesentence, and a different sentence should be imposed.6 In any other case, I mustdismiss the appeal.7 The approach previously taken by courts on sentencing appealscontinues to apply;8 the measure of error is the sentence be "manifestly excessive" –the principle is "well-engrained" in this Court's approach to sentencing appeals.9 I willnot intervene where the sentence is within a range properly justified by acceptedsentencing principle. Whether 'manifestly excessive' is to be assessed in terms of thesentence given, rather than the process by which it is reached.10Issue on appeal[8] Mr Singh's counsel, Hunter de Groot, accepts the sentence falls within therange properly justified by accepted sentencing principle. The sole contention on4 Police v Singh, above n 1, at [10].5 On the charge of obtaining by deception, the Judge imposed a two-month sentence of homedetention, to be served concurrently.6 Criminal Procedure Act 2011, s 250(2).7 Section 250(3).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].9 At [33] and [35].10 Ripia v R [2011] NZCA 101 at [15].appeal is that the sentence imposed "has become significantly more severe that whatthe Judge intended or what could be justified on ordinary sentencing principles".[9] This is because, despite the condition Mr Singh be permitted to work, therestrictions of home detention mean he cannot undertake travel necessary to fulfil hisemployment duties. Those employment duties are described as including hisresponsibility across the Pacific.11 Corrections has confirmed air travel is nottechnically feasible due to the difficulties with the electronics of the bracelet and beingunable to monitor Mr Singh. Mr Singh says his employment contract accordingly isabout to be terminated and submits his employer's 15 November 2019 letter indicatingthat prospect.[10] Mr de Groot says the sentence of eight months' home detention thereby ismanifestly excessive and a sentence of community work and supervision shouldinstead be imposed.Discussion[11] As the Crown says, a sentence appeal is not the appropriate forum to deal withMr Singh's concerns. The standard conditions of home detention are set out in s 80C(2)of the Sentencing Act 2002. An offender may leave the home detention residence toengage in employment, but only with approval of a probation officer.12[12] So far as the appeal is concerned, Mr Singh was convicted of dishonestyoffences which carry maximum sentences of seven years' imprisonment. Mr de Grootaccepts, if Mr Singh was able to continue in his current employment, the end sentence"could not be criticised". That rather suggests it is not the sentence at issue. Mr Singh'sproblem is not with the sentence itself, but its application by the probation officer. Ihave no appellate jurisdiction over that decision.1311 Mr Singh's immediate concern is domestic projects in Christchurch, Rotorua, and Queenstown.12 Sentencing Act 2002, s 80C(3)(b)(ii).13 Barton v R [2015] NZHC 2643 at [12]–[13], citing Mitchell v R [2014] NZCA 362 at [5]. See alsoCase v R [2010] NZCA 518 at [10]–[11].[13] Mr Singh's offending involved a large sum of money, which only was detecteddue to the vigilance of the firm's office manager. He offended twice within a shorttime frame, both times against his employer. An end sentence of eight months' homedetention does not fall outside of the acceptable range; the judge's 20-month startingpoint is very comparable to those for similar offending.14[14] As to Mr Singh's employment difficulties, Mr Singh's probation officer issupportive of his employment, but "only in the Auckland region due to the nature ofhis sentence". There is no suggestion Mr Singh would be unable to obtain anotherposition within the IT industry, not requiring travel. Mr Singh has been convicted oftwo significant dishonesty offences in connection with his previous employment.Difficulties in subsequent employment are a natural consequence of such offending;the end sentence of eight months' home detention is not manifestly excessive.Result[15] Mr Singh's appeal is dismissed.—Jagose J14 Calder v Police [2017] NZHC 1430 (five charges; $17,200; 19-month starting point); citingFannin v Police [2016] NZHC 168 (thirteen charges; $67,400; 15-month starting point); andClarke v Police [2015] NZHC 1692 (six charges; $41,200; 20-month starting point).