IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000253 [2013] NZHC 2489

BETWEEN	JAGTAR SINGH
Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	23 September 2013	

Appearances:	
H Cheeseman for Appellant
I Auld for Respondent	

Judgment:	
23 September 2013	

JUDGMENT OF WOOLFORD J

Solicitors:	Public Defence Service (H Cheeseman), Manukau
Meredith Connell (I Auld), Auckland

SINGH v POLICE [2013] NZHC 2489 [23 September 2013]

Introduction

[1]       On 16 August 2013, Jagtar Singh (the appellant) was sentenced to 12 months imprisonment with six months post-release conditions on one charge of male assaults female (his mother), one charge of intentionally damaging his parents’ front door, one charge of threatening to injure his father with intent to frighten him, two charges of assaulting his father, and one charge of intentionally damaging a Police car.  He now appeals against the sentence.

Background

[2]       On 15 November 2011, the appellant was at his parents’ home.  His mother went to use the toilet and locked the door behind her.  He yelled at his mother and when she opened the door he slapped her arm.  This frightened her and as a result she ran out of the house to the neighbour’s property.  The appellant picked up a black shoe and continued yelling and screaming and chased her down the road.   The appellant caught up with her and used his shoe as a weapon to his mother on the left shoulder.  He continued yelling and threw the shoe at his mother.

[3]       On 21 February 2012, the appellant went to his parents’ home in Papakura. He was intoxicated after drinking at a bar.  He yelled at his parents to open the door and when they would not, he smashed the glass pane of the front door and then fled before the Police arrived.  This offending occurred while the appellant was on bail for assaulting his mother.

[4]       On 6 April 2012, the appellant confronted his father with a large metal spoon and told him he was going to kill him.  His father attempted to walk away from him and go to the garage.  The appellant hit his father on the shoulder with his right fist. He then hit his father again on the left side of his face. The appellant’s father went to a neighbouring property and called the Police. The appellant fled.

[5]       On 8 April 2012 at around 11.00 pm, the appellant went to an associate’s address in Papatoetoe.  The appellant let himself into the house while his associate was out.  The associated discovered the appellant asleep on his couch and asked him to leave.   The appellant refused to leave so his associate called the Police.   The

appellant was arrested and damaged the back of the front passenger seat of the Police car when he kicked it when sitting in the back of the car.

[6]       On 25  February 2013,  the appellant  again went  to  his  parents’ home  in Papakura to pick up his clothes.   His father told him he could not do that.   He became enraged and punched his father on the left side of his face causing swelling to his eye.

District Court decision

[7]       After reciting the facts of the appellant’s offending, Judge Winter noted his previous convictions included three charges of wilful damage, one of threatening behaviour  and  one  of  common  assault.     Judge  Winter  then  referred  to  a psychologist’s report which diagnosed the appellant with cannabis dependency and a cluster  B  personality  disorder  with  narcissistic  and  histrionic  personality  traits. Judge Winter noted the description of the appellant in the psychologist’s report as presenting with a high risk of re-offending.   The appellant’s likely victims were defined as anyone perceived as slighting or provoking him.  His offending was also likely to be violent with a potential for harm.

[8]       Relying on the psychologist’s report, Judge Winter considered the appellant

to be at high risk of re-offending.   Judge Winter then adopted a starting point of

12 months imprisonment on the lead offence of male assaults female.  This carries a maximum of two years imprisonment.  He also adopted starting points of one month for the wilful damage to the front door, two months for the common assault and wilful damage to the Police car occurring in April 2012, and a starting point of three months for the final assault against the appellant’s father on 25 February 2013.  This led to a total of 18 months imprisonment.

[9]       Judge Winter then gave a six month discount for the appellant’s guilty pleas and his diagnosed mental health difficulties, which would make a sentence of imprisonment harder on him than for others.

[10]     An  end  sentence  of  one  year’s  imprisonment  triggered  Judge  Winter’s

consideration of home or community detention.  Judge Winter noted that bearing in

mind the appellant’s persistent offending and the risk assessment that he had a high risk of future violent outbursts with potential harm to others, the Judge considered it would  be  irresponsible  for  him  to  consider  a  community-based  sentence.    He therefore imposed a sentence of 12 months imprisonment with six months post release conditions.

Appeal against Sentence

Approach to appeal

[11]     An appeal against a sentence is a general appeal which shall be by way of rehearing.   Section 121(3)(b) of the Summary Proceedings Act 1957 provides that the High Court may quash or vary a sentence where it is “clearly excessive or inadequate or inappropriate” or if the Court is “satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing sentence”.

[12]     The approach to be taken to appeals under s 121(3) were set out in Yorston v

Police where the Court said:1

(a)	There must be an error vitiating the lower Court’s original sentencing

discretion: the appeal must proceed on an “error principle”.

(b)       To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)       It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[13]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.  There is nothing in the Supreme Court decision in Austin, Nichols and Co Inc v Stichting Lodestar,2 which

deals with the proper approach to be taken by an appellate court in general appeals, to show that decision was intended to apply in appeals against sentence: see D v Police3 and Wright v Police.4

Discussion

[14]     After carefully considering counsel’s submissions, I am of the view that the starting point on the charge of male assaults female adopted by Judge Winter was too high.  In the Court of Appeal decision of Nixon v R,5  a one year starting point was upheld where the offender pushed the victim onto the concrete outside, then kicked her back and tail bone three times.   The victim was bruised, required x-rays and needed crutches for six days.   This assault is undoubtedly worse than the one perpetrated by the appellant on his mother, which did not involve any injury other
than a red mark on her shoulder.

[15]     In Wallace v R6  the Court of Appeal upheld a starting point of 15 months imprisonment on two charges of male assaults female when one assault involved the offender setting upon the victim and punching her numerous times with both fists about her upper and lower legs.  She tried to protect herself by putting her arms over her legs but “the attack continued and she was struck to her arms, stomach and back”.  The victim was punched with such violence that she landed on the floor and curled into a foetal position.  The attack stopped after she lay crying in that position. She suffered severe bruising covering her legs, back, stomach, arms and shoulder. She also suffered soreness and mental stress.

[16]     I consider Wallace was significantly worse than the present case, in that it involved two counts of male assaults female and the first male assaults female incident was serious with the victim suffering severe bruising and mental trauma.  In the present case, the appellant’s verbal abuse of his mother was sustained, but she
did not suffer any lasting injury.

3	D v Police HC Tauranga CRI-2008-470-22, 9 September 2008.
4	Wright v Police HC Whangarei CRI-2009-488-47, 20 October 2009.
5	Nixon v R CA87/01, 19 June 2001.
6	Wallace v R [2012] NZCA 546.

[17]     In R v Reihana7 the offender punched the victim once to the left eye causing her to fall to the floor. The victim sustained significant bruising to her left eye, and it was swollen almost to the point of complete closure.  Her eyebrow also split open and she received sutures.   The Court of Appeal found this was a serious offence aggravated by the offender’s refusal to leave when the victim asked him to.   The Court of Appeal  imposed a sentence of five  months imprisonment.   Whilst the appellant has previous convictions and the offender in  Reihana did not, it does confirm my view that a sentence of 12 months imprisonment was too high a starting point for the lead offence in the present case.

[18]     Furthermore, in the High Court decision of Kahaki v Police,8  a 13 month starting point was adopted for charges of male assault female and breach of a protection order.  In that case the assault involved abusing the victim, shoving her, pushing her, pulling her hair and punching her about the head and face a number of times.   When she was on the ground the offender stomped on her head and then punched her in the head about ten times.   The victim suffered fractured ribs and serious bruising.  The offender in Kahaki had previous convictions including one for wounding with intent to injure.

[19]     The maximum penalty for male assault female is two years imprisonment. When viewed against that maximum and the above cases, I think a starting point of six months imprisonment would have been appropriate.

[20]     The appellant submits that one month for wilful damage when the maximum penalty is three months is also too high.  However, I consider that the sentences of one month, two months and three months respectively on the remaining charges, when taking all of the offending in its totality into account, were appropriate.

[21]     I am therefore of the view the Judge should have reached an adjusted starting point of 12 months not 18 months imprisonment. A discount for the guilty pleas and the appellant’s mental health difficulties then needed to be taken into account.  The leading decision on the discount to be applied to offenders suffering from a mental

illness is E(CA689/2010) v R.9  At [71] the Court of Appeal state that discounts when mental illness has contributed to the offending have ranged from 12 per cent to
30 per cent.

[22]     In the present case, Judge Winter gave a discount of 33 per cent or one-third on the basis of the appellant’s guilty pleas and mental health difficulties, which would make a sentence of imprisonment harder on the appellant than anyone else.  I see no reason to depart from the sentencing Judge’s assessment.  This leaves an end sentence of 8 months imprisonment.   I must now turn to the availability of home detention.

Home detention

[23]     The  standard  of  appeal  when  considering  whether  a  sentence  of  home detention should have been imposed is as follows:10

We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits.   The question is whether Judge Tuohy erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong?

[24]     Judge  Winter  stated  it  would  be  irresponsible  for  him  to  consider  a community based sentence.   However, home detention is not a community based sentence.   A community based sentence is defined in s 44 of the Sentencing Act
2002.   It does not include home detention.   Home detention has its own regime separate to community based sentences.   Judge Winter therefore was incorrect to characterise home detention as a community based sentence and to accordingly not consider it.

[25]     Before imposing a sentence of home detention the Court must consider:

15A      Sentence of home detention

(1)        If a court is lawfully entitled under this or any other enactment to impose a sentence of home detention, it may impose a sentence of home detention only if—

(a)        the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and

(b)        the court would otherwise sentence the offender to a short- term sentence of imprisonment.

(2)	This  section  is  subject  to  any  provision  in  this  or  any  other enactment that—

(a)        provides a presumption in favour of or against imposing a sentence  of  home  detention  in  relation  to  a  particular offence; or

(b)        requires a court to impose a sentence of imprisonment in relation to a particular offence.

[26]     The Court of Appeal in R v Iosefa11 noted that home detention provides a real alternative  to   imprisonment   because  it   carries   with   it   significant   levels   of denunciation and deterrence.  The Courts in Osman v R12  and Manikpersadh v R13 said despite principles of deterrence, where the individual is a good candidate for home detention the least restrictive outcome principle is the primary consideration. The Court of Appeal in Osman noted that:14

Once it is accepted that home detention can be a deterrent sentence, then we think that in this case the argument against home detention falls away. Sentencing to home detention is still holding the appellants accountable and sending a signal of deterrence.

[27]   In my view, Judge Winter gave too much weight to the principles of denunciation and deterrence especially considering that home detention is considered an effective method of denunciation and deterrence.   He also placed insufficient weight on Mr Singh’s mental health difficulties and the effect imprisonment would have on somebody who already has anti-social tendencies.

[28]     Home detention has been granted in cases of male assault female.   In R v

Richardson the offender was sentenced to four months home detention for punching

11	R v Iosefa [2008] NZCA 453 at [41].
12	Osman v R [2010] NZCA 199.
13	Manikpersadh v R [2011] NZCA 452.

his pregnant girlfriend repeatedly in the stomach and threatening to kill her.15    He had several previous convictions for wilful damage.

[29]     Home detention is available in the present case.  Mr Singh’s father is in Court today, offering support to his son.  Mr Singh’s father has offered the house he owns as a suitable address for home detention.  Mr Singh’s father is to be commended for wanting to assist his son when he and his wife have been the victims of his assaults. The house is a three bedroom house in which the appellant would live on his own. This would help to prevent him feeling as if his privacy and independence was being threatened by others.  The appellant has consented to electronic monitoring and the address is viable for electronic monitoring.  The lease agreement also allows for the appellant’s detention in the house.   The addendum to the pre-sentence report of
20 June 2013, also notes that the appellant has adhered to his strict bail conditions since his last Court appearance.

[30]     I am therefore of the view that the 12 month sentence of imprisonment should be quashed and be substituted with a sentence of five months home detention.   I agree with counsel for the appellant that even the five weeks the appellant has already spent in prison can have a powerful effect and act punitively and as a deterrent.  I consider that to serve a year’s imprisonment would only further ostracise the appellant from the community and would further cement relationships with other persons who display anti-social behaviour.  This would serve to increase his risk of re-offending  when  he  is  released  from  prison.     Prison  would  exacerbate  the influences of anti-social associates and would not promote his rehabilitation and reintegration into the community.

[31]     I consider a sentence of home detention would be the most effective way to

ensure the appellant’s rehabilitation.

[32]     The appeal is therefore allowed.  The sentence of 12 months imprisonment is quashed and is replaced with a sentence of five months of home detention.   In addition to the standard conditions stipulated in s 80C of the Sentencing Act, the
following special conditions are imposed:

15	R v Richardson [2012] NZHC 1465.

(a)       Upon release from prison, the appellant is to report to the Papakura office of the Probation Service within 24 hours of release from Prison.

(b)       The appellant is to follow the directions of the Probation Service as to travel to the detention address to await the arrival of a probation officer and a representative of the electronic monitoring company.

(c)       Attend an assessment with a Department of Corrections psychologist and complete any recommended counselling, to the satisfaction of the psychologist and the supervising probation officer.

(d)       Attend any counselling or treatment to address identified offending issues, to the satisfaction of the supervising probation officer and the programme provider.

[33]	Finally, I direct that a copy of the psychological report be released to the

appellant’s supervising probation officer.

……………………………….

Woolford J