In place of the sentences of two years’ imprisonment on the kidnapping charges, we impose the following sentences:
- (a) Mr Chahil must pay reparation of $5,000 to Bashan Singh in one lump sum immediately.
- (b) Eighteen months’ imprisonment on each of the kidnapping charges, those terms to be concurrent.
Mr Chahil must present himself to the Criminal Desk at the Auckland High Court by no later than noon on 14 June 2010 to commence his sentence of imprisonment.

CA542/2009 (PARVINDER SINGH)

The appeal against conviction is allowed but only to the extent that the conviction for aggravated wounding is quashed.

G No order is made for retrial on the aggravated wounding charge.

H The appeal against sentence is allowed.

The sentences of imprisonment imposed on the kidnapping charges are quashed.

On the kidnapping charges, Parvinder Singh is sentenced to home detention for six months, the sentences to be concurrent. The sentence is subject to the following conditions:

(a) Parvinder Singh must be at 23 Tiverton Road, New Windsor, Auckland at noon on 11 June 2010 to start his sentence of home detention.

(b) He must reside at 23 Tiverton Road, New Windsor, Auckland or at an address approved by the Home Detention Probation Officer.

(c) He must not engage or continue to engage in any employment or occupation in which the Home Detention Probation Officer has directed him not to engage or continue to engage.
(d) He must not associate directly or indirectly with any persons with whom the Home Detention Probation Officer has directed him not to associate.
(e) He must undertake counselling or treatment or a programme if directed by the Home Detention Probation Officer.

CA583/2009 (GURPREET SINGH)

K The appeal is dismissed.

CA728/2009 (CHARANJIT SINGH)

L The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

TABLE OF CONTENTS

Introduction [1]
The appeals [6]
The statement of Charanjit Singh [7]
Inconsistent and unreasonable verdicts [23]
The aggravated wounding charge [33]
The sentence appeals [40]
Decision [58]

Introduction

[1] The appellants were convicted after trial of kidnapping two men and causing grievous bodily harm to one of them with intent to facilitate the commission of a crime. These appeals challenge both the convictions and the sentences of imprisonment imposed upon several of the appellants.
[2] The Crown case was that the two complainants, Akbar Singh and Bashan Singh, were employed as chefs at a restaurant in Whangaparaoa owned by the appellant Rupinder Singh Chahil. They decided to take up employment at another local restaurant, and resigned at approximately 8.34pm on Sunday 10 June 2007. They returned to the home, supplied by Rupinder Singh Chahil, that they shared at Whangaparaoa. At about 11.30pm three vehicles arrived at the home unannounced, carrying at least six to eight people, including the four appellants. Rupinder Singh Chahil issued orders to the others.
[3] The Crown alleged that Akbar Singh went to the front door where he was slapped repeatedly by Parvinder Singh, and was then detained. Bashan Singh was next confronted by Parvinder Singh and others in his upstairs bedroom. He went to the balcony and made a phone call, asking another person to call the police. He then decided to climb over the balcony to get away. Seeing this, Rupinder Singh Chahil ordered Parvinder Singh and Rajvinder Singh to stop him. Rajvinder Singh seized his hand, trying to pull him up, but then released him. Because his grip on the rail had been broken, Bashan Singh fell, breaking both ankles. Parvinder Singh, Gurpreet Singh, and Charanjit Singh ran outside and surrounded him, and some of the offenders, including Charinjit Singh and Parvinder Singh, punched and kicked him. He was carried back inside the address and searched by Rupinder Singh Chahil, who took his cellphone.
[4] The Crown alleged that Rupinder Singh Chahil demanded the name of the future employer of the two men. He threatened Akbar Singh, holding a pistol to his head. Fearing for his life, Akbar Singh phoned the future employer and told him to come to the address. That person did so, but fled when some of the group went out to his car to seize him. Akbar Singh and Bashan Singh were then placed in two separate cars and taken away. Akbar Singh was driven to Charanjit Singh’s address, placed in a room, and told not to leave until 10am the following morning. He was given food and drink. He was not guarded. At about 6.30am he left and notified the police. Bashan Singh was taken to Parvinder Singh’s home address in Botany Downs and there held captive before being taken to Middlemore Hospital at 3.20am. There Rupinder Singh Chahil again confronted him, demanding to know the name of the new employer, before leaving. Parvinder Singh remained at the hospital with Bashan Singh while his injuries were attended to.
[5] Rajvinder Singh has never been apprehended. The other appellants were convicted and sentenced as follows:

Appellant	Charge	Sentence
Rupinder Singh Chahil	Kidnapping (x2): Crimes Act 1961 s 209(b) Aggravated wounding of Bashan Singh: Crimes Act s 191(1)(a)	Two years imprisonment
Parvinder Singh	Kidnapping (x2) Aggravated wounding of Bashan Singh	12 months imprisonment
Charanjit Singh	Kidnapping (x2)	Four months home detention
Gurpreet Singh	Kidnapping (x2)	Four months home detention

Gurpreet Singh and Charanjit Singh were acquitted of the aggravated wounding of Bashan Singh. All appellants were acquitted on two further charges, one of committing a crime (kidnapping) using a firearm and the other of assaulting Akbar Singh with intent to facilitate the commission of an offence.

The appeals

[6] The conviction appeals, brought by all appellants, are based on allegations that the Judge wrongly allowed the Crown to lead parts of the police interview of Charanjit Singh that lacked probative value against him but were extremely prejudicial with respect to the other accused, that this error was compounded by the prosecutor, in his closing address, invoking that statement as evidence against the others, that the Judge’s directions could not eliminate the prejudicial effect of the evidence and the prosecutor’s misuse of it, and that the verdicts were inconsistent and unreasonable. Rupinder Singh Chahil and Parvinder Singh complain that the Judge misdirected the jury on the elements of the aggravated wounding charge, which also was not made out on the evidence. With respect to sentence, Rupinder Singh Chahil and Parvinder Singh contend that the Judge ought to have imposed home detention in lieu of imprisonment.

The statement of Charanjit Singh

[7] Charanjit Singh gave a video statement to the police on 12 June, with the aid of an interpreter. It is not in dispute that the statement was admissible against him. He claimed that he had arrived at the victims’ house after the incident, then took Akbar Singh to his home and told him he could meet Bashan Singh in the morning at the hospital. But when told that others had said he was involved in the kidnapping, he made admissions:

Scuse me. Ah, yeah, that may be so, but, ah, Akbar and Bashan have been subjected to, or alleged they have been subjected to um assaults, and kidnapping.

[... Punjabi ...]

Now I believe that a number of people have been involved, um and that ah you are not by any means the ringleader or the boss as to what’s happened.

[... Punjabi ...]

Ah, and every single person involved is going to be spoken to by us um in exactly the same manner as you are now.

[... Punjabi ...]

So the best thing you can do um is to give um me an honest um, answer for what, what has happened that night, um.

[... Punjabi ...]

[... Punjabi ...]

They’ll ah do the same to me what they have done to them.

Um I think you’ll find, well, we have ah already spoken to more than just you, ah.

[... Punjabi ...]

[... Punjabi ...]

Ah I can tell you something here but if only if it’s going to be a secret.

At the moment, we are ah carrying out an interview on tape.

Yeah I know.

Um this tape, um to be fair to you.

Mmm.

Um can be used in court, so um what you tell me now on this tape um is not necessarily going to be kept between you and I.

So, what I’ll do is I will tell you ah what I think has happened, OK.

[... Punjabi ...]

OK.

I think that ah, Akbar and Bashan have decided to work at another restaurant, um and that the owner of their restaurant.

Yeah.

Mr um CHAHIL has been very upset about that.

[... Punjabi ...]

[untranslated]

TIME ON VIDEO 13H 37M 39S

And I think that Mr CHAHIL has organised a group of people who work for him at other restaurants to go around to Akbar’s house.

[... Punjabi ...]

[... Punjabi ...]

Yeah.

And I believe that you are one of these people who have gone to Akbar’s house.

[... Punjabi ...]

[... Punjabi ...]

Yes I was with them.

[8] The italicised passages were the subject of a successful s 344A application by the Crown at the start of the trial. Charanjit Singh did not wish to have those passages before the jury, so the question was whether the Crown might put them in evidence as part of its case. Judge Aitken reasoned that the evidence was probative against Charanjit Singh because it suggested his earlier exculpatory answers were untrue. So far as the other accused were concerned, the Crown accepted that the statement was not admissible against them. Nor was it particularly prejudicial, for Charanjit Singh had given a number of names and did not identify who “they” were. A warning to the jury against improper use would be effective.
[9] Ms Lummis and Mr Merrick appeared for the Crown at trial, but Ms Lummis fell ill and was replaced by Mr Burns for the final four days. He deployed Charanjit Singh’s statement against all of the accused when concluding his closing address:

I suppose the point that I want to come to in conclusion is this: it’s never easy in a case like this to get to what actually happened but some things can be helpful and one of the things that you may find particularly helpful is the comment that Charanjit Singh made in the course of his interview. Towards the end of his interview the policeman interviewing asked him to give an honest answer, and he said “they’ll do the same to me what they have done to them.” And that really encapsulates what this is about, this is about bullying, intimidation and the use and threat of violence instigated by Rupinder Singh Chahil and carried out by himself and the other three as well.

[10] Earlier in his address he also referred to the statement when addressing the controversial question whether Rupinder Singh Chahil was present:

If you look at Charanjit Singh’s statement that he made to the police, he too said that both of them were at the house that night and he said that Joti Jain was in her car which was a Mercedes.

So if you put all those things together you’ve got quite clearly the fact that Rupinder Singh Chahil was there.

[11] Rupinder Singh Chahil had presented an alibi to the effect that he was at a restaurant in Mission Bay at the time. Mr Burns suggested that the alibi witnesses had to be wrong, and added:

Charanjit says that they were over on the Shore albeit at a later time than when the injuries occurred.

That statement was incorrect. Charanjit Singh did not acknowledge in the video statement that Rupinder Singh Chahil was present.

[12] Mr Haigh QC, who appeared both at trial and before us, sought to correct these errors in his own address, emphasising that Mr Burns had got it wrong, and the Judge took the matter up with Mr Burns in the absence of the jury. It is not suggested that the error was anything other than an error, which Mr Burns attributed to his very late involvement in the trial.
[13] The Judge addressed the issue in her summing up, which was delivered the following day. She gave the jury a question trail designed, as she explained, to ensure that the jury considered each count and each accused separately, and added:

That is particularly important for you to bear in mind for example, when you come to consider the video statement of Charanjit Singh because as I explained to you before you viewed the video, that statement is admissible for or against Charanjit Singh only. It was quite wrong of Mr Burns, and he accepts this, members of the jury, to have suggested to you yesterday that you might find, I think he said, something helpful in that video and referred to a comment that Charanjit Singh made about people doing something to him.

In summary, members of the jury, that comment is not helpful at all. You will make of that comment what you will, but the point here is that it is not permissible to use that comment or anything else that Charanjit Singh said in his interview when it comes to considering the case for or against any of the three other accused. The relevance of anything that Charanjit Singh said in his interview, if you find any of it to be relevant at all, and you may not, but the relevance of what he says in that interview is relevant only in respect of the case against Charanjit Singh.

You may find that somewhat artificial, but it is not members of the jury. It is a very fundamental legal principle and I must direct you quite firmly on that. When you come to consider the case against Charanjit Singh, make of the video statement what you will. When you come to consider the case against the other three, it is improper, it is impermissible for you to consider what Charanjit Singh has said about them, if he says anything about them at all. So I really need to make that point loud and clear.

[14] Later in her summing up the Judge dealt with the evidence that Rupinder Singh Chahil was there. She noted not only that the complainants said he was but also that his car was seen in the area, and added:

The Crown say you have also got the evidence of what Charanjit Singh said in his video interview, but as I have already explained to you, that is evidence only in respect of Charanjit Singh.

The Crown cannot point to that evidence, members of the jury, and say that other people were there because Charanjit Singh in his interview, may or may not have said they were. It is irrelevant in respect of the other accused as I have already said twice. What Charanjit Singh said about them has got nothing to do with the evidence against them.

[15] No counsel suggested to the Judge at the time that these directions were inadequate, or that the trial should be aborted.
[16] In this Court Mr Haigh led the argument for all of the appellants on this issue. He contended that the Judge was wrong to allow the Crown to lead the offending parts of the statement, for they were more prejudicial to the appellants than probative of the Crown’s case against Charanjit Singh. No direction could adequately alleviate the prejudice, which was compounded by the prosecutor’s misuse of the evidence. The direction that the Judge gave was inadequate; it was confusing and left the jury to make of the evidence “what you will”. For Charanjit Singh, Mr Lance added that the offending parts of the statement were of no probative value and called for speculation.
[17] A trial Judge has jurisdiction to edit an accused’s statement at the instance of a co-accused where the prosecution adduces the statement in evidence and the accused who made it does not object to the editing.[1] But editing is rarely appropriate where the statement is probative of the Crown’s case against the accused who made it. The statement is of course inadmissible against the co-accused and the Court ordinarily presumes that the jury will follow the Judge’s directions to that effect. So the possibility of editing arises only where the statement is so prejudicial against the co-accused that there is a real risk, the Judge’s directions notwithstanding, of the jury using it against them.[2] In such a case, the remedy normally lies not in editing but in severance.[3] None of the accused sought severance in this case.
[18] We accept Mr Woolford’s submission that the statement was plainly probative against Charanjit Singh. His defence was that he had arrived at the scene only after Bashan Singh had been injured and that his participation had been limited to helping the victims. He relied on his statement, in particular the first part of it. The significance of the italicised parts of the statement was that they suggested his statement might not be true, and that he might be holding back things that he had done or knew.
[19] The jury were clearly warned that the statement was inadmissible against the other accused, so the question is whether the evidence was so prejudicial to them that such direction could not be relied upon to prevent the jury using the statement against them. The prejudice confronting Rupinder Singh Chahil, who denied being present at all, lay in the suggestion that he had initiated and led a kidnapping to maintain his control over two workers who wanted to leave his employ. As against Parvinder Singh and Gurpreet Singh, the prejudice lay in the suggestion that “they’ll do the same to me”, referring by implication to the other accused.
[20] We do not accept that the evidence was so prejudicial that the jury could not be expected to put it aside when considering the case against the accused other than Charanjit Singh. It was not the sort of evidence calculated to excite prejudice. Nor did it fill an important gap in the Crown case against the co-accused. It attributed a motive to Rupinder Singh Chahil, but that was already manifest in the other Crown evidence. Charanjit Singh did not specifically state that Rupinder Singh Chahil was present. With respect to the other accused, the statement tends only to confirm that they were doing Rupinder Singh Chahil’s bidding.
[21] The Judge firmly corrected the prosecutor’s misuse of the statement, emphasising that the statement could not be used against any other accused. She need not repeat everything that Mr Burns had mistakenly said, for she was conveying the clear and simple message that the statement was inadmissible against any other accused. She also dealt with the prosecutor’s claim that Charanjit Singh had said Rupinder Singh Chahil was there, stating that the Crown could not point to his statement to identify anyone else. We do not accept that she detracted from her warning by stating that the jury might make of the statement what they will. In context, she was simply emphasising that it was for the jury to decide whether to attach any weight to the statement as against Charanjit Singh. Nor is there anything in the point that she described the rule about use of an accused’s statement as artificial; on the contrary, she recognised that the jury might be inclined to think it so, but emphasised that it was actually a fundamental legal principle.
[22] We repeat that no defence counsel at trial sought to have the jury discharged and a new trial ordered after Mr Burns’ address, nor did they suggest that the Judge’s directions were inadequate. This ground of appeal fails.

Inconsistent and unreasonable verdicts

[23] The accused were all acquitted on count 3, kidnapping using a firearm, and count 5, assaulting Akbar Singh with intent to facilitate the commission of a crime. Count 3 related to the allegation that Rupinder Singh Chahil used a pistol to threaten Akbar Singh, and count 5 to the alleged slapping of Akbar Singh.
[24] For Rupinder Singh Chahil, Mr Haigh advanced three arguments: the jury would likely have accepted the alibi evidence but for the prosecutor’s misuse of Charanjit Singh’s statement; the acquittal on count 3 is inconsistent with the guilty verdicts because it shows that the jury rejected the complainants’ evidence on a fundamental issue, the use of a firearm; and the evidence as a whole must have left the jury in reasonable doubt. In argument he accepted that the challenge turns on the jury’s failure to accept the evidence that Rupinder Singh Chahil had a gun.
[25] The alibi evidence referred to was that of Rupinder Singh Chahil’s lawyer, Richard Allen, and his wife, Liane Farry. Their evidence was that they met him at a restaurant in Mission Bay at about 9pm on 10 June, and there had a meal with him while they talked business. They left soon after midnight, at which time Rupinder Singh Chahil was still at the restaurant.
[26] For Parvinder Singh, Mr Lawson argued that the verdicts were inconsistent and so unreasonable. For Charanjit Singh, Mr Lance argued that the verdicts are unreasonable, for the evidence does not reveal that he unlawfully detained either complainant. It shows only that he was present and later helped the complainants.
[27] An appeal must be allowed if the verdict was unreasonable or cannot be supported having regard to the evidence. Unreasonableness is established if, having regard to all of the evidence, the jury could not reasonably have been satisfied beyond reasonable doubt that the accused was guilty.[4] The appellate Court does not substitute its view of the evidence but performs a review function, recognising that the weight to be given to evidence is a jury matter and the jury may have been in a better position to assess matters such as honesty and reliability.[5]
[28] Unreasonableness may be demonstrated by showing that guilty and not guilty verdicts are inconsistent. The appellant must show that no reasonable jury, applying its mind properly to the evidence, could have arrived at the different verdicts. That principle was affirmed by the Supreme Court when refusing leave in Nevin v R.[6]
[29] The proposition that the verdicts are inconsistent rests on the submission that Akbar Singh could not possibly have been mistaken about so important a matter as the use of a weapon. The acquittal accordingly demonstrates that he was not a credible witness, and that being so, the jury ought to have rejected the rest of his evidence. We note that the Judge commented at sentencing that aspects of Akbar Singh’s evidence had an air of exaggeration about them. However, it is not the case that the jury must accept or reject all of a witness’s evidence. They may have sought corroboration, which was found, with respect to the other charges, in the evidence of Bashan Singh and the physical and circumstantial evidence. Bashan Singh did not state that Rupinder Singh Chahil had a gun (although he did say in evidence, for the first time, that he had seen Rupinder Singh Chahil fiddling with something on the right hand side of his pants).
[30] Nor do we accept that the verdicts were unreasonable in the sense that they lacked sufficient foundation in the evidence. With respect to Rupinder Singh Chahil, there was evidence (independent of Charanjit Singh’s statement) placing him at the scene, and we have already rejected the submission that there was a risk of the jury misusing that statement. Both complainants were clear that Rupinder Singh Chahil was present. He abused them for being unhappy with their wages and issued instructions to the others. Other witnesses placed his car at the scene. The Crown invited the jury to reject the evidence of the alibi witnesses, noting that the alleged alibi was first raised many months after the event, suggesting that they may have been mistaken about which evening they dined with Rupinder Singh Chahil, and suggesting that the alibi was inconsistent with clear evidence that Rupinder Singh Chahil was present at the scene.
[31] The substance of Charanjit Singh’s appeal is that, at its highest, the evidence shows he was present. Indeed, Bashan Singh said that Charanjit Singh assisted him. Mr Lance complained that the Judge failed to instruct the jury that mere presence was not enough. We observe, however, that the Judge’s directions made it clear that the jury had to be satisfied the accused himself had intentionally detained the complainants without their consent. No issue was taken with that direction. And there was ample evidence that Charanjit Singh was a participant, acting on Rupinder Singh Chahil’s instructions; on the complainants’ accounts he carried Bashan Singh inside the house at Rupinder Singh Chahil’s direction; although he tended to Bashan Singh there, they were not free to go and he detained them with the others; lastly, he took Akbar Singh away to his own home at Botany Downs and put him in a room, telling him he could not leave until ten.
[32] These conclusions dispose of all the appeals against the two kidnapping convictions.

The aggravated wounding charge

[33] Mr Lawson argued that the Judge erred by putting the aggravated wounding charge to the jury on the basis that Parvinder Singh was a principal. At best the evidence established that he was a party. Bashan Singh’s evidence was that Rajvinder Singh alone caused his injuries. Nobody had been chasing him; he went out onto the balcony to make a phone call to someone and ask her to call the Police. He decided to climb down. As he did so, Rajvinder Singh tried to stop him by holding his hands. Bashan Singh lost his grip, causing him to fall. Parvinder Singh was on the balcony but he was just standing there, saying nothing. This point was taken up with the Judge, but she treated Parvinder Singh as a principal.
[34] The offence of aggravated wounding relevantly requires that a principal offender, having the specific intent to commit or facilitate the commission of any crime, caused grievous bodily harm to another. It must be shown that the offender either meant to cause the specified harm or foresaw that his actions were likely to expose others to the risk of suffering it.[7]
[35] The Judge’s question trail for the jury posed the following three questions:

COUNT 4 AGGRAVATED WOUNDING – Parvinder Singh – As principal

4.1 Are you sure that the accused caused really serious harm to Bashan Singh?

4.2 Are you sure that the accused reasonably anticipated that the actions undertaken by him were likely to expose Bashan Singh to the risk of suffering really serious harm?

4.3 Are you sure that, in causing really serious harm to Bashan Singh, the accused intended to facilitate the unlawful detention (the kidnapping)?

[36] In her summing up the Judge said:

Moving to count 4, aggravated wounding, this has some slightly different legal issues. The Crown has presented its case in this way: the Crown says that Parvinder Singh was a principal in this offence and that the other three accused were parties to it.

I will deal with the two different legal issues that arise on that basis. The Crown’s case very briefly on this point, just to put it in context perhaps, the Crown says that you can rely on Bashan Singh’s evidence here. Bashan, you may recall, gave evidence that he went out on the balcony, I think he said he was trying to make a phone call. He then said that, this is in his evidence to you, that Parvinder and Rajvinder came out on the balcony and at around that time, he goes over the edge and holds onto the rails and his evidence is that Rajvinder grabs his hand and he falls from that point.

The Crown says on that evidence that puts Parvinder Singh out on the balcony. And the Crown says that his role in being out there, and what was going on at the time, the Crown says that that makes Parvinder Singh responsible as a principal.

To decide that of course you are going to have to decide what the facts are. You may reach the view that Parvinder Singh was not there at that time anyway, he had not even arrived. If that is the case, you will be quickly of the view that the proper verdict should be one of not guilty.

[37] It will be seen that the Judge directed the jury to decide whether the accused reasonably anticipated that his actions were likely to expose Bashan Singh to really serious harm. That was an error. The question was whether he actually meant to cause such harm, or actually foresaw that his actions were likely to expose Bashan Singh to the risk of suffering it.
[38] On the facts, it cannot be said that no miscarriage resulted. At its highest, the Crown case was that Parvinder Singh and Rajvinder Singh were both in pursuit of Bashan Singh, who said that Rupinder Singh Chahil had seen him on the balcony, presumably as he made his phone call, and said that he “is trying to run, catch him”. The two men on the balcony then moved towards him as he tried to climb down. Rajvinder Singh was not trying to push Bashan Singh off; rather, Bashan Singh said that Rajvinder Singh was trying to pull him up by one hand, but then let go. There was no evidence that Parvinder Singh did anything to Bashan Singh on the balcony; Bashan Singh’s evidence was that he simply stood there. The jury could not be satisfied on this evidence that either appellant actually foresaw that his own actions in trying to ensure that Bashan Singh did not escape were likely to expose Bashan Singh to the risk of really serious harm. The Judge put the case to the jury on the basis that Parvinder Singh was a principal, when he was at best a party to a wounding by Rajvinder Singh. Even as parties, it would have to be shown that he and Rupinder Singh Chahil encouraged or assisted Rajvinder Singh knowing the essential facts of what was to happen, but on the evidence all they knew was that Bashan Singh was to be detained on the balcony. We note that in sentencing the two men the Judge accepted that neither Rajvinder Singh nor anyone else intended that Bashan Singh should fall.
[39] The conviction appeals of Rupinder Singh Chahil and Parvinder Singh on the aggravated wounding charge are allowed. The convictions are set aside. Because the case as put to the jury was that Parvinder Singh was a principal, which could not be made out on the evidence, and the Crown should not be allowed to recast the case to characterise him as a party, there will be no order for a retrial.

The sentence appeals

[40] Sentencing the appellants, the Judge made it clear that she regarded Rupinder Singh Chahil as the most culpable of them. The others acted at his direction in detaining both victims. Aggravating factors were the physical and emotional harm to the victims, the entry to their house at night, the premeditation, and the duration of the detention. The detention was not confined to the period at the victims’ house; they were taken away and further detained for some hours (about seven hours in Akbar Singh’s case and a little over four hours in Bashan Singh’s). Bashan Singh was in considerable pain. She accepted that his injuries were not intended, but they did happen as part of the kidnappings and were properly taken into account when fixing the starting point. The injuries were severe – his left heel was shattered – and their effects enduring.
[41] Parvinder Singh acted at the direction of Rupinder Singh Chahil, but he was present from the start, and he went out onto the balcony to stop Bashan Singh escaping. The Judge agreed with counsel that he must have been found guilty of the aggravated wounding because his presence was a direct cause of Bashan Singh trying to flee and being dropped, or falling. He also played a primary role in the detention, especially that of Bashan Singh once they had left the house. He took Bashan Singh to his own house and eventually to hospital.
[42] The Judge adopted a starting point of four years imprisonment for Rupinder Singh Chahil and three years for Parvinder Singh.
[43] Turning to mitigating factors, the Judge accepted that Rupinder Singh Chahil had no convictions, a supportive family and extensive business interests in New Zealand. He has made a significant contribution to the wider Indian community. He presents a low risk of reoffending. He had expressed qualified remorse, and was willing to pay emotional harm reparation. However, the Judge noted the absence of any admission of responsibility. With respect to Parvinder Singh, he too was a first offender at low risk of reoffending and the offending was out of character. The trial had been felt keenly by his family.
[44] The Judge was urged to impose home detention, but ruled it out because it did not adequately reflect the gravity of the offending and the absence of any real acceptance of responsibility. While home detention has been employed, imprisonment is “virtually inevitable” in kidnapping cases.[8] She noted that Rupinder Singh Chahil claimed his business interests could collapse if he was sentenced to imprisonment. His businesses are under financial pressure, and creditors might take action if he were imprisoned, resulting in the loss of many jobs. She accepted that the risk of business failure was real, but she was not persuaded that it would in fact happen. Further, he had had two months to get his affairs in order yet had done nothing. While home detention was ruled out, she did treat the risk to his business interests as a mitigating factor. In the case of Parvinder Singh, home detention would also be inappropriate having regard to the serious harm that he had caused Bashan Singh.
[45] On appeal, Mr Haigh accepted that two years imprisonment was appropriate if the conviction appeal failed entirely, but argued that the least restrictive sentence for Rupinder Singh Chahil would have been 12 months home detention with a fine, reparation of $15,000, and community work. Mr Lawson similarly accepted that 12 months imprisonment was appropriate but argued that home detention ought to have been imposed. Both counsel argued that the Judge effectively ruled out home detention in kidnapping cases, and Mr Haigh submitted that she was obliged to consider reparation but did not.
[46] At the end of the hearing we directed that reparation reports be prepared. We also sought submissions on the question whether conditions could be attached to home detention to ensure that Rupinder Singh Chahil did not secure general freedom of movement to attend to his business interests. Counsel agreed, however, that s 80D of the Sentencing Act permits special conditions only if there is a significant risk of further offending.
[47] The reparation reports addressed emotional harm for the victims. Akbar Singh still experiences anguish and suffered enormous financial loss. He claims still to fear Rupinder Singh Chahil, and does not venture out alone. However, he rejected a proposal that Rupinder Singh Chahil pay $5,000, which he perceived as “buying justice”. Reparation was not recommended.
[48] Bashan Singh similarly expressed fear of the offenders and was emotional when discussing the offending. He has another job but can only work four to five hours a day because of pain in his legs. He has a claim before the Employment Relations Authority for unpaid wages. He would accept any amount ordered by the Court.
[49] We begin by recognising that while the aggravated wounding charge was incidental to the kidnapping and the Judge recognised that neither appellant intended the particular harm (the broken ankles) to Bashan Singh, the successful appeal against conviction does affect sentence, particularly for Parvinder Singh. The Judge sentenced Parvinder Singh on the basis that he caused Bashan Singh’s injuries, and she evidently considered that the conviction for aggravated wounding both distinguished him from Gurpreet Singh and Charanjit Singh and required a sentence of imprisonment.
[50] In the case of Rupinder Singh Chahil, we reduce the end sentence by six months for the successful conviction appeal. No further allowance is appropriate; he planned and directed the kidnappings, and he instructed Parvinder Singh and Rajvinder Singh not to let Bashan Singh get away, leading directly to the injuries. The reduction in the end sentence takes reparation into account, as we explain below.
[51] The real issue in his case is whether a less restrictive sentence than imprisonment adequately meets the need for denunciation and deterrence. As to that, we are not persuaded that the Judge erred. It is true that she held that imprisonment normally follows a kidnapping conviction, but she did not fail to assess the culpability of each offender. She did not sentence Charanjit Singh and Gurpreet Singh to imprisonment, and the sentence for Parvinder Singh was much influenced by the aggravated wounding conviction. She correctly noted that both general and specific deterrence matter, having regard to the number of Indian migrant workers Rupinder Singh Chahil employs. She did not overlook any mitigating factor, including the absence of previous convictions and the low reoffending risk.
[52] Mr Haigh criticised the Judge’s conclusion that Rupinder Singh Chahil had not done anything to put his affairs in order, arguing that his strategic involvement could not be replicated. An affidavit was supplied, attaching a report from his accountant, Donald Cleaver. It is evident that he has not one business but several, one or two of which are in difficulty. In Mr Cleaver’s opinion his bankers, who know of the case, will act should he be imprisoned. However, there is no evidence from the bankers, who have yet to act although he was arrested in 2007 and stood trial in June 2009. We agree with the Judge that it is not possible to say whether his businesses will collapse during a short term of imprisonment, while he seems to have made no effort to have someone else manage them while he is in prison or persuade his creditors that such arrangements can be made.
[53] In the end, the striking feature of the kidnappings is Rupinder Singh Chahil’s remarkable sense of entitlement to the services of employees who wanted to leave his employ. Although money was not demanded, the kidnapping was calculated to serve his economic interests. He planned and implemented a most intimidating and lengthy detention involving a large number of men. His decisions led directly to

Bashan Singh’s injuries. He has not shown real remorse. These were unquestionably serious offences to which imprisonment was a condign response.

[54] In the case of Parvinder Singh, a much larger reduction in sentence is necessary. Like Charanjit Singh and Gurpreet Singh, he followed orders. He was somewhat more culpable than Charanjit Singh, who helped the victims and was a somewhat reluctant participant, and Gurpreet Singh, who detained Akbar Singh at the property then drove Bashan Singh away, but who was dropped off on the journey to Parvinder Singh’s house and played no further role after that. Parvinder Singh followed Bashan Singh onto the balcony and played what the Judge described as “a primary role” in the detention, right up to the point when Bashan Singh was delivered to Middlemore hospital. A distinction is properly drawn between the three secondary offenders, but a sentence of imprisonment cannot be justified having regard to the sentences imposed on Charanjit Singh and Gurpreet Singh. His sentence is set aside and a sentence of six months home detention substituted. Prior to sentencing, Parvinder Singh signed a home/community detention agreement, accepting the home detention conditions that the probation officer recommended. Those conditions are set out in order J in the Court’s formal judgment.
[55] We accept Mr Haigh’s submission that emotional harm reparation might be imposed, and that the Court must order it unless satisfied that the sentence would result in undue hardship for the offender or his dependants, or that any other special circumstance would make it inappropriate.[9] Reparation also affects the length of any other sentence, including imprisonment, that is imposed for the same offending.
[56] However, we share the Judge’s view that reparation cannot lead to a community-based sentence for Rupinder Singh Chahil. The payment of emotional harm reparation can make but a modest contribution to the overall sentence having regard to the public interest in denunciation and deterrence and the absence of genuine remorse.
[57] Having regard to Akbar Singh’s views, we will not order reparation in his case. But emotional harm reparation must be paid to Bashan Singh. We fix the payment, having regard to the offer that has been made, at $5,000. That is to be paid as a lump sum, forthwith. Rupinder Singh Chahil has made the offer of reparation and it is appropriate that he alone should pay it. This payment is for emotional harm; it does not compensate for any outstanding wages. It should not be taken into account in any resolution of Bashan Singh’s employment-related litigation.

Decision

[58] The appeals by Rupinder Singh Chahil and Parvinder Singh against conviction for aggravated wounding are allowed. Those convictions are quashed and there will be no order for retrial. All conviction appeals are otherwise dismissed.
[59] The sentence of two years imprisonment imposed on Rupinder Singh Chahil is quashed and a sentence of 18 months imprisonment substituted on each of the kidnapping charges, to be served concurrently. Rupinder Singh Chahil must report to the Criminal Desk at the High Court at Auckland to commence serving his sentence no later than noon on 14 June 2010 to begin serving his sentence.
[60] Rupinder Singh Chahil is to pay reparation of $5,000 to Bashan Singh immediately.
[61] The sentence of 12 months imprisonment imposed on Rupinder Singh is quashed and a sentence of 6 months home detention substituted on each of the kidnapping charges, the sentences to be concurrent. The conditions of the home detention sentence are recorded in order J of the Court’s formal orders.

Solicitors:
Crown Law Office, Wellington

[1] R v Rolston [2008] NZCA 431 at [50].

[2] R v Fenton CA223/00, 14 September 2000 at [22].

[3] R v Fenton at [26].

[4] R v Owen [2007] NZSC 102, [2008] 2 NZLR 37.

[5] R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.

[6] Nevin v R [2008] NZSC 40; on appeal from R v Nevin [2008] NZCA 16 at [11].

[7] R v Tihi [1989] 2 NZLR 29 (CA).

[8] R v McKenzie HC Auckland CRI-2006-057-07774, 20 March 2007 at [21].

[9] Sentencing Act, ss 12 and 32(1)(b).

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