Chahil v R [2010] NZCA 331 (27 July 2010)

Last Updated: 3 August 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA534/2009 [2010] NZCA 331

BETWEEN RUPINDER SINGH CHAHIL
Appellant

AND THE QUEEN
Respondent

Hearing: 22 July 2010

Court: Chambers, Potter and Miller JJ

Counsel: J Haigh QC for Appellant
N Flanagan for Respondent

Judgment: 27 July 2010 at 4 pm

JUDGMENT OF THE COURT

1. The appeal against sentence is allowed.
2. 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.

100. Mr Chahil must present himself to the Criminal Desk at the Auckland High Court by no later than noon on Friday, 30 July 2010 to commence his sentence of imprisonment.

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REASONS OF THE COURT

(Given by Miller J)

[1] In our judgment of 10 June 2010, we quashed the appellant’s conviction for aggravated wounding and reduced his sentence on the two kidnapping charges from two years imprisonment to 18 months imprisonment with an order for reparation of $5,000 to one of the victims, Bashan Singh.[1]
[2] The judgment was recalled in part on 14 June 2010, the Court having learned that the appellant’s counsel, Mr Haigh QC, had not been provided with copies of the reparation reports.[2] Mr Haigh’s particular concern at that time was that two victims had expressed fear of the appellant, believing that he might cause them further harm. He wished to adduce evidence in response. The appellant duly swore an affidavit deposing that he presents no risk to the victims and had not threatened them in any way.
[3] Despite the partial recall of the 10 June judgment, we assume the reader of these reasons has read it. We do not repeat what was said there about the offending, the appellant’s circumstances, and Judge Aitken’s reasoning.
[4] The appeal is now advanced on a somewhat different footing from what concerned Mr Haigh on 14 June. He makes two points. First, in the 10 June judgment we commented on the absence of evidence about the impact on the appellant’s businesses were he to be imprisoned. Second, the Court might impose special conditions directed to its concern that were he granted home detention, the appellant might seek substantial freedom of movement to manage his business affairs.
[5] With respect to the first of these points, there is a further affidavit of the appellant explaining that he risks bankruptcy if he is not able personally to organise and negotiate the sale or disposal of mortgaged properties which are collateral security for property development projects. Other parties will lose money and employees will lose their jobs. He attaches a letter from Kiwibank, the mortgagee to C G Park Limited, a company of which he is a shareholder and sole director. That company owes Kiwibank almost $8 million, which is personally guaranteed by the appellant. He is currently negotiating the sale of the property on behalf of the mortgagor, and the bank states that it would like him to continue the negotiations to avoid a mortgagee sale, which would likely increase the loss for the Bank. There is also a letter from his solicitor explaining that while the appellant has a supportive family, the members lack the commercial experience to deal with the crisis. His concern is that mortgagee sales will realise less than the properties are worth. He explains that the appellant has managed to sell some properties satisfactorily.
[6] We accept that the appellant’s companies are in the process of disposing of assets to repay very substantial debts that they owe to various lenders, and that he is at risk of bankruptcy. However, this information does not take the question of home detention any further. We do not accept that the appellant alone is able to realise market value for the properties; a professional might be engaged to sell them. It remains unclear why he took no steps to arrange his affairs until recently. (We are told that since the hearing in this Court he has sold his restaurant businesses.) And if he is or becomes insolvent, it could not be said that imprisonment was the cause; the cause, rather, is that he is already financially overstretched. Mr Haigh’s instructions now are that it is not just a matter of selling the properties but of then being able to preserve or raise enough money to complete a development, which lends a distinctly speculative air to the argument that the appellant will escape insolvency only if he is on home detention. Lastly, the sentencing Judge was aware, as we were, that imprisonment might have an adverse effect on the appellant’s finances. That is commonly the case.
[7] With respect to the second point, we called for home detention reports after the hearing on 6 May 2010, but Mr Haigh is wrong to suggest that the Court gave a “strong indication” that if special conditions could be imposed then home detention would be the preferred sentence. Rather, as explained in our judgment of 14 June, we accepted that the District Court Judge had arguably approached the sentencing analysis in the wrong way. We were simply exploring possible implications if we acceded to Mr Haigh’s submissions. One matter in which we were interested was whether, if we granted home detention, the appellant might contend to the Corrections Department that he needed effective freedom of movement to conduct his businesses. Counsel accepted at that time that s 80D of the Sentencing Act 2002 does not allow the Court to impose special conditions on that ground.
[8] Mr Haigh now submits that the emotional harm report for Akbar Singh and the reparation report for Bashan Singh change that position, because both of them expressed fear of the appellant. Accordingly, the Court might impose a special condition to eliminate a risk of reoffending.
[9] This brings us back to Mr Haigh’s original reason for seeking a rehearing. He argued that the Court may have attached weight to the victims’ fear of the appellant. While we accepted that the victims do fear the appellant, there was and is nothing to suggest that the appellant poses a significant risk of further offending in fact. Indeed, Mr Haigh accepts that. It would not be appropriate to impose a special condition ostensibly to prevent further offending but actually to meet our original fear that the appellant would seek effective freedom of movement if sentenced to home detention.
[10] In our judgment of 10 June we said:[3]

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.

[11] That is why imprisonment remains the appropriate sentence in this case. We are not persuaded either that home detention ought to be substituted or that the term is excessive.
[12] In the recall judgment we set aside the sentence that we had substituted for that imposed in the District Court. We now affirm that the original District Court sentence is set aside, and we substitute concurrent sentences of 18 months imprisonment on each of the two charges of kidnapping. The appellant must pay reparation of $5,000 to Bashan Singh in one lump sum immediately. The effect of this judgment is that the sentence imposed on 10 June is confirmed.
[13] The appellant must present himself to the Criminal Desk at the Auckland High Court by no later than noon on Friday, 30 July 2010 to commence his sentence of imprisonment.

Solicitors:
Swarbrick Beck MacKinnon, Auckland, for Appellant
Crown Law Office, Wellington, for Respondent

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[1] Rupinder Singh Chahil v R [2010] NZCA 244.

[2] Rupinder Singh Chahil v R [2010] NZCA 253.

[3] At [53].