IN THE Court of appeal OF new Zealand
	
CA78/2013
[2013] NZCA 245

BETWEEN	
SARBJEET SINGH
Appellant	

AND	
THE QUEEN
Respondent	

Hearing:	
2 May 2013	

Court:	
Arnold, Chisholm and Keane JJ	

Counsel:	
N K McDonald for Appellant
B D Tantrum & L M Mills for Respondent	

Judgment:	
20 June 2013 at 11 am	

JUDGMENT OF THE COURT

The appeal against sentence is allowed, to the extent that the appellant’s sentence of seven months home detention is quashed.  Otherwise, his sentence stands.

____________________________________________________________________

REASONS OF THE COURT
(Given by Keane J)

[1]	On 18 January 2013, at the District Court, Manukau, Sarbjeet Singh was sentenced for four representative offences, involving the fraudulent use of documents between 1 January–4 July 2007, to seven months home detention and 100 hours community work and ordered to make $20,000 reparation.  
[2]	This sentence was consistent with a sentence indication given to Mr Singh by the sentencing Judge, Judge B A Gibson, on 16 November 2012, before he pleaded on arraignment.  Despite that he appeals his sentence as manifestly excessive on the ground of disparity.  
[3]	On 20 June 2012, seven months before Mr Singh was sentenced, and five months before Judge Gibson gave the sentence indication he accepted, his co‑offender, John Kirikava, was sentenced to 150 hours community work for his part in this shared offending.  On this appeal Mr Singh contends that his culpability was no greater and that his sentence should have been more nearly equivalent.  
[4]	Mr Singh is only able to rely on disparity to contend that his sentence is manifestly excessive if he can establish that disparity to be so gross and unjustifiable as to suggest to an independent objective observer that the administration of justice has miscarried. 
[5]	The sentence imposed on Mr Kirikava was, on its face, lenient and, as this Court has often said, an offender, whose sentence is proportionate to his or her offence, cannot anticipate having that sentence reduced because a co‑offender has been treated leniently.  On this appeal Mr Singh also faces the still larger difficulty that his sentence was that indicated to him before he entered his plea.  
[6]	On the hearing of the appeal, however, the possibility emerged that Judge Gibson’s sentencing indication might have rested on a mistaken premise: that Mr Kirikava’s sentence was in large part explained not just by his role in the offending and earlier plea, but by a significant discount for co-operating with the police.  Our own review of the District Court record confirms that to have been so.  On that basis alone we are obliged to revisit the sentence imposed.  
[7]	Mr Singh has, furthermore, now paid in full the reparation ordered and in resolving this appeal, to bring about finality, we are invited to cancel that order.  
Offences and offenders
[8]	Michael Tomlin, John Kirikava and Sarbjeet Singh worked together between 1 January–4 July 2007 at one or both of the two scrap metal yards in Otahuhu belonging to Sims Pacific Metals Ltd.  In those yards Sims receives, and pays for, scrap metal according to a process for which the three were responsible over the seven months in issue.  
[9]	Michael Tomlin, whom we understand had been employed as a metal grader at those yards since at least January 2003, was by January 2007 a weighbridge operator but continued to grade metal.  John Kirikava appears to have become a metal grader before 1 January 2007.  Mr Singh, we understand, had until that date been engaged by Sims in another capacity.  
[10]	When, during the seven months, scrap metal dealers delivered metal to Sims Mr Tomlin recorded the gross weight of their trucks.  He issued the dealers a weighbridge docket, recording that weight and the grade of scrap metal the dealers said they were delivering.  Sometimes he also checked the load and certified the metal grade on the docket.  More usually, that was what Mr Singh or Mr Kirikava did at the drop off area.
[11]	After the dealer had dropped off the load Mr Tomlin re‑weighed the empty truck.  By deducting that unladen weight from the gross weight he had taken earlier, he obtained the weight of metal delivered.  He entered that weight and the metal grade certified in the weighbridge computer, which calculated the payment due to the dealer.  Payment was made by cash, cheque or bank transfer.  
[12]	In the years since 2005 certainly, Mr Tomlin, and we understand others, had taken payments from some dealers to increase their load weights, to upgrade the metal they delivered and to record fictitious loads.  The overpayments Sims made as a result grew to a very large figure.
[13]	In the seven months in which they worked together Mr Kirikava and Mr Singh joined Mr Tomlin in that fraud.  Mr Tomlin continued to offend as he had before.  Their part in the fraud lay in upgrading the metal that some dealers supplied and in certifying that false grade on the weighbridge docket.  
[14]	In August 2011, after this offending was discovered, all three were charged with dishonest misuse of documents, and with them two scrap metal dealers, Saba Khalifeh and Dharmend Kumar.  Mr Tomlin’s offending was alleged to have extended over four years.  That of Mr Kirikava and Mr Singh over seven months (though Mr Kirikava pleaded to offending said to have begun on 1 January 2005).
[15]	Mr Tomlin and Mr Kirikava, who like Mr Singh were charged by information with indictable offences, pleaded early in the summary jurisdiction and each was sentenced by Judge Swaran Singh.  At the date of Mr Singh’s sentence indication, by contrast, he and the two dealers had been indicted and faced trial.  
Tomlin sentence
[16]	On 4 May 2012 Mr Tomlin, who appears originally to have been charged with 22 offences, was sentenced for two representative offences, extending as the Judge said over four years.  
[17]	Sims’ actual loss, as a result of Mr Tomlin’s offending with others, the Judge said, was in excess of $1.5M.  Mr Tomlin had, as the Crown accepted, assisted the police with their investigation.  He had accepted responsibility, pleaded relatively early, expressed remorse and offered reparation.  He had already paid $2,000 from his superannuation contribution and $2,300 from his wages.  
[18]	The Crown contended for a four–five year starting point and the defence for two–three years imprisonment.  The Judge took a starting point of four and a half years.  He allowed Mr Tomlin, a total credit of 55 per cent.  25 per cent was attributable to Mr Tomlin’s plea and the balance to his positive pre-sentence report and to co‑operation with the police and prospectively in the prosecution.
[19]	On the basis that Mr Tomlin’s sentence then became 24 months imprisonment, a short term, the Judge imposed on him 12 months home detention.  He ordered Mr Tomlin to make $150,000 reparation.
Kirikava sentence
[20]	Mr Kirikava, like Mr Singh, was originally charged with four offences, to which Mr Tomlin and Mr Singh were alleged variously to be party, but by the date on which he was sentenced that had reduced to one representative offence.  That charge alleged he had offended between 1 January 2005–4 July 2007, but the offending for which he was sentenced began on 1 January 2007.  
[21]	On 4 May 2012, when Mr Kirikava first appeared before Judge Swaran Singh for sentence, the Crown invited the Judge to take a three year starting point.  Mr Kirikava’s counsel invited the Judge to convict and discharge him, or to order him to come up for sentence if called upon.  The Judge invited Mr Kirikava to apply to be discharged without conviction and adjourned sentence.
[22]	In a submission, dated 21 May 2012, Mr Kirikava’s counsel made that application.  He submitted that it would be disproportionate to Mr Kirikava’s culpability to convict him.  His role in the offending, the amount Sims had lost as a result, and the amount he had gained, were all relatively minor.
[23]	To establish that Mr Kirikava was the least culpable of the three offenders his counsel relied on a break down Mr Tomlin had made for the police of the April 2007 weighbridge dockets.  Mr Tomlin had identified 59 falsified dockets and had attributed to Mr Singh a part in 38 (64 per cent), to Mr Kirikava a part in nine (15 per cent) and to himself a part in 22 (37 per cent).
[24]	Consistently, Mr Kirikava’s counsel contended, Sims had estimated its loss over the seven months to be $48,000, but had only deducted from Mr Kirikava’s superannuation $11,539.70, and did not look to Mr Kirikava for more.  
[25]	The Crown submitted in response that a discharge without conviction was quite disproportionate to Mr Kirikava’s offending and on 20 June 2012, on sentence, the Judge accepted the Crown’s submission.  He also accepted that Mr Kirikava was the least culpable offender.  As he said to Mr Kirikava:
I am … prepared to accept that your culpability in this offending is lower than those of your co-offenders, and the extent of the harm caused to the victim by your conduct is much lower than that caused by your co‑offenders.
[26]	Earlier, the Judge said he was satisfied this was “out of character offending”.  Mr Kirikava had no previous convictions, he had expressed remorse and he had made full reparation from his superannuation scheme.  He was considered at very low risk of re-offending and was highly motivated to change.  He sentenced Mr Kirikava to 150 hours community work.
Sentence indication
[27]	In his sentence indication to Mr Singh on 16 November 2012, Judge Gibson recorded that Mr Singh, at 56, had not previously appeared before any Court.  But he faced charges “arising out of a sophisticated commercial fraud”, on a large scale, that had caused Sims losses “in the hundreds of thousands of dollars”.  
[28]	The Judge accepted that Mr Singh was “not one of the main offenders” but said that he had gained by his offending $20,000–$30,000.  Then the Judge said this:
Some of the co-offenders have already been sentenced.  One received six months community detention and 100 hours community work and a reparation order of $32,000, another 12 months home detention, 100 hours community work and reparation of $150,000 and another, Mr [Kirikava], was sentenced to 150 hours community work.  The sentencing notes for that matter are not available.  Mr [Kirikava], I am told, was prosecuted summarily and is to give evidence for the Crown at trial, and no doubt that was a matter that was taken into account in assessing the sentence.
[29]	Aggravating Mr Singh’s offending, the Judge said, was a “degree of premeditation”, over the seven months, and the “overall loss” suffered by Sims.  He accepted the Crown’s submission that a two year starting point was warranted.  He said he would allow Mr Singh a 10 per cent discount for previous good character and 15 per cent for plea, resulting in a sentence of 18 months imprisonment.  
[30]	If Mr Singh received a positive pre-sentence report, the Judge said, he would commute that sentence to seven–nine months home detention, and 100 hours community work, and would order $20,000 reparation.  That is the sentence the Judge imposed on 18 January 2013 without giving further reasons.  
Conclusions
[31]	This sentence, we are satisfied, did rest on the mistaken premise that Mr Kirikava had received a sentence significantly discounted for co‑operating with the police.  That was not so.  Mr Tomlin received that discount.  Mr Kirikava received the sentence he did because the Judge rated him the least culpable of the three offenders.
[32]	On our review of the record we consider, moreover, that Mr Kirikava’s sentence also rested on the questionable premise that he was the least culpable of the three offenders.  He, like Mr Singh, was clearly greatly less culpable than Mr Tomlin, who had offended over four years, and as weighbridge operator had been the pivotal offender.  We question whether Mr Kirikava was truly less culpable than Mr Singh, his fellow metal grader.  
[33]	It is immaterial, we consider, that Mr Kirikava was sentenced for one representative offence and Mr Singh for four representative offences.  Each was convicted of offending over the full seven months, each of offending in which the other was implicated, and on the statements of facts we have seen no distinction is made between them.  
[34]	We do not consider Mr Tomlin’s breakdown of the April 2007 invoices is a safe basis on which to assess their relative culpability over the seven months.  Nor do we think that Sims’ willingness to accept less reparation from Mr Kirikava can be taken literally without a breakdown of all falsified invoices, which we understand Sims never made, or never supplied to the Court.  We note that on sentence the Crown proposed a three year starting point for Mr Kirikava but two years for Mr Singh.  
[35]	In the result, we consider, when the two sentences are compared, and even though Mr Kirikava’s sentence may have been unduly lenient, the disparity between is so gross that an independent objective observer would conclude that, in Mr Singh’s case, the administration of justice has miscarried.
[36]	Mr Singh, in contrast to Mr Kirikava, was sentenced to seven months home detention, a significant period of confinement.  He, like Mr Kirikava, was also sentenced to community work, and that element of his sentence stands at two-thirds of Mr Kirikava’s total sentence.  The reparation he was required to make was significantly greater.
[37]	Mr Singh’s home detention sentence also sits uneasily alongside the 12 month term imposed on Mr Tomlin.  Mr Tomlin may have co‑operated with the police and prospectively in the prosecution, in that way earning a significant discount.  But that can only have been by describing the roles his co‑offenders played in his own offending.  Mr Kirikava and Mr Singh only offended because he recruited them.  They could not have offended as they did, unless he had played his primary part.  
[38]	In revisiting Mr Singh’s sentence, as we must, we also take into account two matters since sentence.  One is that, as a result of his sentence of home detention, Mr Singh lost his job with his new employer, who had given him a positive reference for the purpose of sentence, rating him highly.  His employer could not accommodate electronic monitoring.  The other is that, despite that, Mr Singh has made complete reparation.
[39]	To impose on Mr Singh a sentence proportionate not just to his offending but to the sentences imposed on Mr Kirikava, primarily, but also on Mr Tomlin, we quash his sentence of home detention.  We confirm his sentence of 100 hours community work.  We confirm that Mr Singh has completed reparation, fully complying with that order.
Solicitors: 
Oranga Law, Auckland for Appellant
Crown Solicitor, Auckland for Respondent