IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA684/2021
 [2022] NZCA 261

	
BETWEEN	
SATNAM SINGH
Appellant	
	
AND	
THE QUEEN
Respondent	

Hearing:	
7 June 2022	

Court:	
Gilbert, Mander and Fitzgerald JJ	

Counsel:	
E J Forster for Appellant
J Mara for Respondent	

Judgment:	
22 June 2022 at 9 am	

JUDGMENT OF THE COURT

A	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 young person.  He was sentenced by Judge R J Collins in the Napier District Court to nine year’s imprisonment.  He appeals his sentence, out of time, on the sole basis he should have been afforded a discount for his inevitable deportation following his release from prison.  
[2]	Mr Singh’s lateness in filing his appeal arises from communication difficulties with the prison.  In the circumstances, the Crown does not oppose the application to appeal 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 developed a relationship.  He committed multiple indecent acts on the complainant that escalated to offences of unlawful sexual connection and rape.  In total Mr Singh was found guilty of 18 charges of sexual offending against this young complainant.
[4]	In sentencing Mr Singh, the Judge identified the charge of rape as the lead offence.  The Judge found that charge alone could have resulted in a starting point in excess of seven or eight years.  Considering the balance of the offending, the Judge adopted an overall starting point of nine years’ imprisonment.  Manipulation of the complainant’s emotions, breach of trust, and the complainant’s vulnerability as a result of her age and personality were identified as aggravating features.  The Judge did not consider there were any mitigating factors so the nine-year starting point was imposed as the final effective sentence.
[5]	The Judge declined “by a very narrow margin” to impose a minimum period of imprisonment.  After noting that Mr Singh’s release would be for the Parole Board to determine after the expiry of one-third of his sentence, the Judge observed he had no doubt Mr Singh would be deported from New Zealand.
[6]	Mr Singh is unlawfully in New Zealand.  He does not hold a valid visa and has been served with a deportation notice.
The appeal
[7]	Mr Forster, counsel for Mr Singh, argued the sentence of imprisonment was manifestly excessive because no discount was applied for Mr Singh’s liability for deportation following release from prison.  This, it was argued, resulted in a disproportionately severe sentence.  Mr Forster relied upon two decisions of this Court which he submitted supported his argument that an offender’s prospective deportation should result in their sentence being reduced.  It was suggested this factor should have resulted in a 12-month deduction.  
[8]	The Crown, on the other hand, maintained the weight of authority demonstrates that immigration consequences of offending will generally be irrelevant to sentence.  Mr Mara, on behalf of the Crown, submitted the sentence imposed by Judge R J Collins was commensurate with the gravity of Mr Singh’s offending and that in the absence of any particular or undue personal hardship arising from his deportation 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 in Singh v R.  However, this does not represent strong authority for the proposition put forward.  In that case, the sentencing Judge deducted one year from a starting point of 10 years’ imprisonment to reflect the appellant’s deportation once his sentence was concluded.  It was noted he and his family had been attempting to start a new life in this country and this would now be no longer possible.  The appeal focussed on the starting point which was held to be excessive.  In adopting a reduced starting point and recalculating the sentence, this Court, without argument, simply applied the approach taken by the sentencing Court to the balance of the sentencing exercise.  This Court was not required to directly address the issue of discount for an offender’s deportation.  
[10]	In Zhang v R, a full bench of this Court examined the approach to be taken to sentencing for methamphetamine-related offending.  In doing so, it held that personal mitigating circumstances should be taken into account for serious drug offending.  However, the Court rejected any suggestion the prospect of deportation should result in a reduced sentence:
[168]	Potential deportation of an offender is not a consideration in sentence‑setting.  It is the function of the courts to impose sentences appropriate to the particular offending.  In performing that task, the distinct administrative processes for removal under the Immigration Act 2009, which may 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 a proper ground for refusing to impose a minimum period of imprisonment which would otherwise have been justified.
(Footnotes omitted).
[11]	That statement of principle reflects the general approach that the court must maintain consistency of sentencing and not differentiate between offenders according to their country of origin.   The appropriate sentence will be a matter for the courts, taking into account the relevant circumstances of the offence and the offender.  Not to be deterred, Mr Forster referred to the approach recently taken by Lang J, in the High Court, to the sentencing of a defendant on charges of wounding with intent to cause grievous bodily harm. There, the sentencing Judge accepted the offender’s deportation would cause him hardship as a result of his life now being firmly grounded in New Zealand.  Reference was made to the strong support network the offender had established in this country and what was described as the added stress the prospect of deportation would create for the offender while serving his sentence of imprisonment.  We note Singh v R was cited as authority for that proposition and no reference was made to the full Court’s decision in Zhang.  A subsequent appeal by Mr Momi against his sentence to this Court did not engage the issue of credit for the prospect of deportation.
[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 sentencing consideration, must prevail.  However, a sentencing court is also obliged to take into account any particular circumstances of an offender that would render a sentence, in a particular instance, disproportionately severe.  Where there is evidence of particular hardship arising to an offender from being deported after the completion of their sentence, an appropriate allowance can be made if that is necessary to avoid the sentence being disproportionately severe.  However, the fact of deportation by itself does not bear on the sentencing exercise.
Decision
[13]	Mr Forster relied on details set out in Mr Singh’s pre-sentence report regarding how he came to New Zealand in December 2014 for a better life, having completed a commerce degree in India.  After completing a diploma in business studies in Hawke’s Bay, Mr Singh engaged in fulltime employment.  It was noted he has a small group of friends in New Zealand and, while on bail late last year, developed a relationship with a local woman he now describes as his partner.  Mr Singh advised the pre-sentence report writer he was unable to return to India for the funeral of his father as a result of the then pending criminal proceeding, and that while his family in India 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 in this country, and that he has effectively lost the benefit of what was described as eight to nine years of hard work establishing himself in this country.  Mr Forster also asserted that, as in Momi, Mr Singh will have to endure the anguish of serving his prison term while knowing that upon his release he will be deported.
[15]	We do not consider, either taken alone or in combination, these consequences of Mr Singh’s convictions and subsequent deportation should attract a discrete discount.  There is no basis to conclude he will suffer any greater hardship from the loss of the opportunity to live and work in this country than would otherwise be anticipated as a result of a person in Mr Singh’s position being convicted of serious sexual offending.  The repercussions of deportation do not require his sentence to be adjusted in order to avoid it being disproportionately severe.  In the absence of acute personal hardship to Mr Singh or any affected family member (of which there are none), or of particularly harsh consequences beyond those ordinarily experienced by a person from their enforced deportation from this country, we do not consider any error 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