SATNAM SINGH v R [2022] NZCA 261

SATNAM SINGH v R [2022] NZCA 261 [22 June 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA684/2021[2022] NZCA 261BETWEEN SATNAM SINGHAppellantAND THE QUEENRespondentHearing: 7 June 2022Court: Gilbert, Mander and Fitzgerald JJCounsel: E J Forster for AppellantJ Mara for RespondentJudgment: 22 June 2022 at 9 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] Mr Satnam Singh was convicted by a jury of sexual offending against a youngperson. He was sentenced by Judge R J Collins in the Napier District Court tonine year's imprisonment.1 He appeals his sentence, out of time, on the sole basis heshould have been afforded a discount for his inevitable deportation following hisrelease from prison.1 R v Singh [2021] NZDC 18572.[2] Mr Singh's lateness in filing his appeal arises from communication difficultieswith the prison. In the circumstances, the Crown does not oppose the application toappeal out of time and leave is granted.Background[3] Over the course of a seven-month period, Mr Singh, a 27-year-old man,engaged in sexual offending against a 14-year-old teenager with whom he developeda relationship. He committed multiple indecent acts on the complainant that escalatedto offences of unlawful sexual connection and rape. In total Mr Singh was found guiltyof 18 charges of sexual offending against this young complainant.[4] In sentencing Mr Singh, the Judge identified the charge of rape as the leadoffence.2 The Judge found that charge alone could have resulted in a starting point inexcess of seven or eight years.3 Considering the balance of the offending, the Judgeadopted an overall starting point of nine years' imprisonment.4 Manipulation ofthe complainant's emotions, breach of trust, and the complainant's vulnerability as aresult of her age and personality were identified as aggravating features.5 The Judgedid not consider there were any mitigating factors so the nine-year starting point wasimposed as the final effective sentence.6[5] The Judge declined "by a very narrow margin" to impose a minimum periodof imprisonment.7 After noting that Mr Singh's release would be for the Parole Boardto determine after the expiry of one-third of his sentence, the Judge observed he hadno doubt Mr Singh would be deported from New Zealand.8[6] Mr Singh is unlawfully in New Zealand. He does not hold a valid visa and hasbeen served with a deportation notice.92 At [25].3 At [26].4 At [30].5 At [28].6 At [31]–[32].7 At [33].8 At [34].9 Immigration Act 2009, s 154.The appeal[7] Mr Forster, counsel for Mr Singh, argued the sentence of imprisonment wasmanifestly excessive because no discount was applied for Mr Singh's liability fordeportation following release from prison. This, it was argued, resulted in adisproportionately severe sentence. Mr Forster relied upon two decisions of this Courtwhich he submitted supported his argument that an offender's prospective deportationshould result in their sentence being reduced.10 It was suggested this factor shouldhave resulted in a 12-month deduction.[8] The Crown, on the other hand, maintained the weight of authority demonstratesthat immigration consequences of offending will generally be irrelevant to sentence.11Mr Mara, on behalf of the Crown, submitted the sentence imposed byJudge R J Collins was commensurate with the gravity of Mr Singh's offending andthat in the absence of any particular or undue personal hardship arising from hisdeportation he was not entitled to any credit for this factor.Analysis[9] Mr Singh's argument largely rested upon the approach taken by this Court inSingh v R.12 However, this does not represent strong authority for the proposition putforward. In that case, the sentencing Judge deducted one year from a starting point of10 years' imprisonment to reflect the appellant's deportation once his sentence wasconcluded.13 It was noted he and his family had been attempting to start a new life inthis country and this would now be no longer possible. The appeal focussed onthe starting point which was held to be excessive. In adopting a reduced starting pointand recalculating the sentence, this Court, without argument, simply appliedthe approach taken by the sentencing Court to the balance of the sentencing exercise.14This Court was not required to directly address the issue of discount for an offender'sdeportation.10 Singh v R [2018] NZCA 388 at [35]; and R v Momi [2021] NZHC 1384.11 R v Zhou [2009] NZCA 365 at [26]; R v Sabuncuoglu [2008] NZCA 448 at [33]–[34]; andR v Zhang CA56/05, 24 May 2005, at [8]–[16].12 Singh v R, above n 10.13 At [27].14 At [35].[10] In Zhang v R, a full bench of this Court examined the approach to be taken tosentencing for methamphetamine-related offending.15 In doing so, it held that personalmitigating circumstances should be taken into account for serious drug offending.However, the Court rejected any suggestion the prospect of deportation should resultin a reduced sentence:[168] Potential deportation of an offender is not a consideration insentence-setting. It is the function of the courts to impose sentencesappropriate to the particular offending. In performing that task, the distinctadministrative processes for removal under the Immigration Act 2009, whichmay or may not apply to one offender or another, have no bearing.Likewise, this Court has also held that the prospect of deportation is not aproper ground for refusing to impose a minimum period of imprisonmentwhich would otherwise have been justified.(Footnotes omitted).[11] That statement of principle reflects the general approach that the court mustmaintain consistency of sentencing and not differentiate between offenders accordingto their country of origin. 16 The appropriate sentence will be a matter for the courts,taking into account the relevant circumstances of the offence and the offender. Not tobe deterred, Mr Forster referred to the approach recently taken by Lang J, inthe High Court, to the sentencing of a defendant on charges of wounding with intentto cause grievous bodily harm.17 There, the sentencing Judge accepted the offender'sdeportation would cause him hardship as a result of his life now being firmly groundedin New Zealand.18 Reference was made to the strong support network the offenderhad established in this country and what was described as the added stress the prospectof deportation would create for the offender while serving his sentence ofimprisonment. We note Singh v R was cited as authority for that proposition and noreference was made to the full Court's decision in Zhang. A subsequent appeal byMr Momi against his sentence to this Court did not engage the issue of credit forthe prospect of deportation.1915 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.16 R v Ahlquist [1989] 2 NZLR 177 (CA) at 179.17 R v Momi, above n 10.18 At [28].19 R v Momi [2022] NZCA 199.[12] We consider the general principle articulated by the full Court in Zhang v R,that the deportation of an offender is not intrinsically a relevant sentencingconsideration, must prevail. However, a sentencing court is also obliged to take intoaccount any particular circumstances of an offender that would render a sentence, in aparticular instance, disproportionately severe.20 Where there is evidence of particularhardship arising to an offender from being deported after the completion of theirsentence, an appropriate allowance can be made if that is necessary to avoidthe sentence being disproportionately severe. However, the fact of deportation byitself does not bear on the sentencing exercise.Decision[13] Mr Forster relied on details set out in Mr Singh's pre-sentence report regardinghow he came to New Zealand in December 2014 for a better life, having completed acommerce degree in India. After completing a diploma in business studies inHawke's Bay, Mr Singh engaged in fulltime employment. It was noted he has a smallgroup of friends in New Zealand and, while on bail late last year, developed arelationship with a local woman he now describes as his partner. Mr Singh advisedthe pre-sentence report writer he was unable to return to India for the funeral of hisfather as a result of the then pending criminal proceeding, and that while his family inIndia is aware of his convictions, he is unsure of their views about him.[14] Mr Forster emphasised the loss of Mr Singh's career prospects, at least inthis country, and that he has effectively lost the benefit of what was described as eightto nine years of hard work establishing himself in this country. Mr Forster alsoasserted that, as in Momi, Mr Singh will have to endure the anguish of serving hisprison term while knowing that upon his release he will be deported.[15] We do not consider, either taken alone or in combination, these consequencesof Mr Singh's convictions and subsequent deportation should attract a discretediscount. There is no basis to conclude he will suffer any greater hardship fromthe loss of the opportunity to live and work in this country than would otherwise beanticipated as a result of a person in Mr Singh's position being convicted of serious20 Sentencing Act 2002, s 8(h).sexual offending. The repercussions of deportation do not require his sentence to beadjusted in order to avoid it being disproportionately severe. In the absence of acutepersonal hardship to Mr Singh or any affected family member (of which there arenone), or of particularly harsh consequences beyond those ordinarily experienced bya person from their enforced deportation from this country, we do not consider anyerror arises from the absence of a discount to mark Mr Singh's deportation.Result[16] Leave is granted to appeal out of time.[17] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent