SINGH v POLICE [2018] NZHC 2513

SINGH v POLICE [2018] NZHC 2513 [26 September 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000224[2018] NZHC 2513BETWEEN PAVNEET SINGHAppellantAND NEW ZEALAND POLICERespondentHearing: 24 September 2018Counsel: G Aulakh for AppellantBA Keown for RespondentJudgment: 26 September 2018JUDGMENT OF DOWNS JThis judgment was delivered by me on Wednesday, 26 September 2018 at 11 am.Registrar/Deputy RegistrarSolicitors/Counsel:G Aulakh, Auckland.Crown Solicitor, Auckland.Issues[1] Judge L Tremewan sentenced Mr Pavneet Singh to a term of 10 weeks'imprisonment.1 Mr Singh had committed three assaults, all on the same evening.2 TheJudge declined to discharge Mr Singh without conviction.3 Mr Singh has now beenreleased from prison. But, he contends he ought to have been discharged withoutconviction.[2] Mr Singh's counsel, Mr Aulakh, does not have the material he anticipated fromMr Singh for the appeal. Mr Singh has "not been reachable". However, Mr Aulakhcontends the Judge failed to identify, or give adequate weight to, mitigating featuresand erred in her assessment of the consequences of conviction.Facts[3] For several days, Mr Singh had been loitering outside a pharmacy inHelensville. On 2 June 2017, the first victim left work. Mr Singh ran at her, and whenshe ran away, gave chase. Mr Singh placed his hand over her mouth to prevent thevictim from screaming. A member of the public came to her aid when Mr Singh'shand "slipped".[4] Mr Singh then ran to a supermarket. He waved at the second victim, to get herattention. She opened a door, to see what he wanted. Mr Singh lunged at her andgrabbed her arms. He attempted to pull her outside. She protested, and broke his grip.Mr Singh then ran to a takeaway store.[5] He there accosted a third female, removed a handful of sweets and then "startedtrying to punch" the last victim, who was attempting to stop Mr Singh from leavingthe shop. Mr Singh repeatedly told this victim he would kill him.[6] Mr Singh's mental health was examined by a court-appointed psychiatrist.Dr Russell Wyness concluded Mr Singh was disinhibited and disorganised in his1 Police v Singh [2018] NZDC 11741.2 All were laid under s 196 of the Crimes Act 1961.3 Sentencing Act 2002, ss 106 and 107.thinking because of a drug-induced psychosis, compounded by anxiety in relation toMr Singh's immigration status. Mr Singh is from India. He had been served with adeportation notice, albeit that had been stayed (on an interim basis) by this Court.Dr Wyness considered this mix did not afford a defence of insanity, because:With regard to subsection 2 of Section 23, it is my opinion Mr Singh knew thenature of the act which he was committing, i.e. approaching young womenwith the aim of asking them to enter a relationship with him.I believe that he knew that the way he was approaching these women waswrong in that he was expecting them to try and escape from him and thereforeeither held on to them and/or put his hand over their mouth so that they couldnot shout for help.Mr Singh's condition of substance induced psychosis is not usually consideredby the court as a disease of the mind under Section 23 of the Act.Analysis[7] Mr Aulakh contends the Judge overlooked or failed to have regard toMr Singh's mental health, guilty pleas and the fact he was a first offender whenconsidering the seriousness of the offending.[8] The Judge referred extensively to the psychiatric report at sentencing. TheJudge reduced the term of imprisonment because of Mr Singh's time in hospital, guiltypleas, and prior good character:4In my assessment a starting point sentence of imprisonment is in factwarranted for this offending. I have given very careful consideration to whatan indicated sentence might be, balancing all matters including your owninterests, and noting again you are a first offender and doubtless theseproceedings have been salutary. In other words a wakeup call for you.Ultimately it is my view that a four month sentence of imprisonment isappropriate. From that I am prepared to give a further credit for the fact thatyou had some time in a mental health facility and you have no previousconviction history, so you have come to the Court as a first offender. I amprepared to give a credit of around 15 percent for that.From the revised starting point I will then give a further credit, which is themaximum credit I can give in law, of 25 percent for your guilty pleas andtaking responsibility. And rounding the outcome that leaves me with an endsentence of 10 [weeks'] imprisonment.4 Police v Singh, above n 1, at [26]–[27].[9] The Judge did not specifically address these matters again when assessing theapplication for a discharge without conviction, but it is obvious the Judge consideredthe offending too serious to warrant that outcome. Her Honour described the offendingas "relatively serious".5[10] The offending was out of character, animated by a psychosis, and committedby a 25-year-old who ultimately pleaded guilty. So, a case could be advanced for adischarge without conviction, especially as none of the victims suffered actualphysical harm. However, two significant problems confront such an approach.[11] First, the Sentencing Act 2002 specifically precludes voluntary consumptionor use of any drug from ameliorating the seriousness of an offence.6 Dr Wynessconsidered "Mr Singh suffered a cannabis and methamphetamine induced psychoticepisode", but was now well in the absence of these substances. Mr Singh had nohistory of mental illness. Consequently, mitigation otherwise applicable to ill mentalhealth (with a nexus to the offending) was specifically constrained by statute. And,Dr Wyness considered Mr Singh appreciated the nature of this actions, and knew theywere wrong. This explains why Mr Singh's then counsel—not Mr Aulakh—acceptedMr Singh's illness had little purchase as a mitigating feature.[12] Second, the offending involved multiple victims. Force was applied to each.The last Mr Singh tried to punch, and repeatedly threatened to kill. All were leftshaken. Unsurprisingly, the first and second victims still feel unsafe being at work orleaving it.[13] It follows the Judge did not err in her assessment of offence seriousness. Asher Honour said, the offending was "relatively serious".[14] Now, consequences of conviction. Mr Singh is completing a bakery course atManukau Institute of Technology. Mr Aulakh contends the fact of conviction mayjeopardise this course, future employment prospects and travel to other parts of theworld. Mr Singh has family in Saudi Arabia and Belgium.5 Police v Singh, above n 1, at [24].6 Sentencing Act 2002, s 9(3).[15] These propositions are not supported by evidence, because Mr Aulakh has lostcontact with his client, and because Mr Singh's affidavit in the District Court wasframed at a level of generality. Mr Singh raised these consequences, but did notappend evidence to support them.7 In any event, courts are reluctant to second-guessdecision makers in this context, whether they be domestic course providers or foreigngovernments. No error arises here either.[16] Mr Aulakh also submitted the Judge wrongly referred to Mr Singh being inNew Zealand unlawfully. However, Mr Singh's counsel accepted that was so, and theJudge noted this issue was for other decision makers.Outcome[17] The appeal is dismissed...Downs J7 Other than a letter from Manukau Institute of Technology, which merely recorded a place on thecourse.