SINGH v R [2021] NZCA 173

SINGH v R [2021] NZCA 173 [10 May 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA682/2018[2021] NZCA 173BETWEEN RAJESHWAR SINGHApplicantAND THE QUEENRespondentCourt: French, Courtney and Collins JJCounsel: Applicant in personJ E Mildenhall for RespondentJudgment:(On the papers)10 May 2021 at 12.30 pmJUDGMENT OF THE COURTThe application to recall this Court's judgment in Singh v R [2016] NZCA 582 is declined.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] In 2014, Mr Singh pleaded guilty to murdering his estranged wife. Mr Singhwas sentenced in accordance with a sentence indication to life imprisonment, with aminimum period of imprisonment (MPI) of 16 years.11 R v Singh [2014] NZHC 1246.[2] In 2016, Mr Singh's appeal against sentence was dismissed by this Court.2Mr Singh then applied in 2018 to have this Court recall its 2016 decision. Thatapplication was dismissed.3 Mr Singh has now brought a second recall application.Background[3] Mr and Mrs Singh were living at separate homes at the time of her murder.Mr Singh was distressed at the breakup of his relationship with his wife. On26 November 2013, he drove to his wife's home, broke in, stabbed her multiple timesand then endeavoured to hang himself in the garage. The police arrived in sufficienttime to rescue Mr Singh. Mr Singh's explanation was that his wife had been stabbedby accident.[4] Ronald Young J agreed to give Mr Singh a sentence indication. In doing so,the Judge explained that s 104 of the Sentencing Act 2002 was engaged because themurder involved premeditation and a home invasion. The Judge adopted a nominalstarting point of an MPI of 18 years, which he reduced to 16 years to reflect Mr Singh'sguilty plea.4 Mr Singh accepted that sentence indication, pleaded guilty and was thensentenced in accordance with the sentence indication.Grounds for application[5] Mr Singh now wishes to challenge the MPI. He alleges Ronald Young J toldhim he would receive a discount of 30 per cent if he pleaded guilty. According toMr Singh, that discount would reflect 25 per cent for Mr Singh's guilty plea and fiveper cent to reflect his mental health issues.Recall jurisdiction[6] The Supreme Court in Uhrle v R5 and this Court in Lyon v R,6 explained that arecall may be granted where:2 Singh v R [2016] NZCA 582.3 Singh v R [2019] NZCA 110.4 Singh v R [2014] NZHC 753 [Sentence indication].5 Uhrle v R [2020] NZSC 62 at [29].6 Lyon (No 2) v R [2020] NZCA 430 at [12].(a) there has been an amendment to a relevant statute or regulation sincethe hearing;(b) where a relevant authority or a legislative provision was overlooked bythe Court whose decision is sought to be recalled; or(c) where for some other very special reason justice requires that thejudgment be recalled.[7] The third ground, which Mr Singh wishes to rely upon, requires an applicantto establish a probable injustice that is substantial or significant.7 This is a particularlyhigh threshold for an applicant to reach. The recall procedure is not ordinarilyavailable where the applicant has a further right of appeal or the ability to seek leaveto do so.8Analysis[8] Mr Singh's application falls short by a considerable margin from establishingthe criteria that is normally required for this Court to exercise its recall jurisdiction.[9] In his sentence indication, Ronald Young J said:9[14] In my view the only justifiable deduction is the guilty plea. Iacknowledge that Mr Singh was suffering from depression. However, I do notconsider having read the psychiatric and psychological reports that hiscondition was such that it either reduced his culpability or means in the futurethat any term of imprisonment would be especially onerous for him.[16] I deduct two years for the guilty plea from the start sentence of18 years and, therefore, the sentence indication is one of firstly, lifeimprisonment and secondly, a minimum sentence of imprisonment of16 years.7 Lyon (No 2), above n 6, at [19].8 At [18].9 Sentence indication, above n 4.[10] Ronald Young J clearly said that Mr Singh could only receive a two-yeardeduction if he pleaded guilty. At no point does the Judge suggest Mr Singh couldreceive a 25 per cent discount.[11] The Judge also expressly said he would not make any deduction to the MPIbecause of any concerns about Mr Singh's mental health.[12] There is therefore no basis upon which this Court could exercise its recalljurisdiction, particularly, as Mr Singh has not exhausted his right to seek leave toappeal to the Supreme Court.Result[13] The application to recall this Court's judgment in Singh v R [2016] NZCA 582is declined.Solicitors:Crown Law Office, Wellington for Respondent