Singh v R [2016] NZCA 595 (13 December 2016)

Last Updated: 6 January 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA493/2016 [2016] NZCA 595
BETWEEN	DAVINDER SINGH Appellant
AND	THE QUEEN Respondent

Court:	Kós P, Randerson and Wild JJ
Counsel:	SNB Wimsett for Appellant K S Grau for Respondent
Judgment: (On the papers)	13 December 2016 at 9.30 am

JUDGMENT OF THE COURT

A An extension of time to appeal is granted.

B The appeal against sentence is allowed.

100. The sentence on the remaining count of resisting arrest is remitted to the District Court for reconsideration.

REASONS OF THE COURT

(Given by Kós P)

[1] Mr Singh was charged with indecent assault, doing an indecent act, resisting arrest and assaulting a police officer. He elected jury trial in the District Court. He was convicted on the first three counts and acquitted on the fourth. He was sentenced to concurrent sentences of two years six months’ imprisonment on the first count, twelve months on the second and two months on the third.
[2] Mr Singh then appealed his convictions on the first two counts only. This Court quashed those convictions on 3 November 2015 and ordered a retrial.^[1] On retrial he was acquitted.
[3] The conviction for the third count, resisting arrest, remains but Mr Singh has already served the two month sentence. He now appeals his sentence on that count. The appeal was filed some 15 months out of time, but as this delay was due to the first appeal and retrial occurring in the intervening period we grant an extension of time.
[4] The notice of appeal contends that the sentence of imprisonment on the count of resisting arrest was “in context of also being sentenced for indecent assault. Had he been sentenced on a single charge of resisting arrest, it is submitted that he would not have been sentenced to imprisonment.” It is submitted that a sentence of two months’ imprisonment is manifestly excessive. Mr Singh, it may be noted, had no prior criminal convictions. He seeks the sentence be set aside and the matter remitted to the District Court so an application for discharge without conviction may be advanced.
[5] There plainly is some merit in the appeal. On 1 December 2016 the Crown counsel filed a memorandum in these terms:

2. The Crown consents the appeal being allowed.

3. The Crown consents to remittance to the District Court for consideration of the appropriate sentence.
4. The Crown expresses no view on the merits of an application for discharge without conviction. That will be a matter for the District Court to determine on receipt of full information and submission from both parties.
5. In these circumstances the Crown considers that the appeal may be determined on the papers.

[6] It being agreed, the appeal will be allowed (on the papers) and the matter remitted to the District Court for determination of an appropriate sentence.

Result

[7] An extension of time to appeal is granted.
[8] The appeal against sentence is allowed.
[9] The sentence on the remaining count of resisting arrest is remitted to the District Court for reconsideration.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Singh v R [2015] NZCA 535.