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Court of Appeal of New Zealand |
Last Updated: 12 June 2020
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BETWEEN |
SHANE SHABIR SINGH Appellant |
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AND |
THE QUEEN Respondent |
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Hearing: |
21 April 2020 |
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Court: |
Clifford, Gilbert and Collins JJ |
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Counsel: |
N P Chisnall for the Appellant Z R Johnston for Respondent |
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Judgment: |
4 June 2020 at 11 am |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
Introduction
[1] Mr Singh, then aged 24, agreed to be the recipient at his home address of two packages sent from the United States containing methamphetamine. The first package arrived in early June 2017 and he delivered it to another co‑defendant. This package was later found to contain 886.9 grams of methamphetamine. In mid‑June 2017, the New Zealand Customs Service intercepted a significantly larger package that was also to be delivered to Mr Singh’s home address. This package contained 3.563 kilograms of methamphetamine. Mr Singh received $10,000 for agreeing to be the recipient of these packages. It is common ground he did not have any idea of the quantities of methamphetamine involved. Mr Singh pleaded guilty at an early stage to two charges of importing methamphetamine for his role in this offending. His co‑offenders did not plead guilty and proceeded to trial.
[2] Mr Singh was sentenced by Lang J on 19 March 2019 to 10 years and four months’ imprisonment.[1] The Judge adopted a starting point of 14 years’ imprisonment in accordance with the then current guideline judgment of this Court in R v Fatu.[2] From this starting point, the Judge allowed three discounts — six months to reflect Mr Singh’s remorse, six months for his previous good character and a further 20 per cent (approximately two years and eight months’ imprisonment) for his guilty plea.[3] The Judge ordered Mr Singh to serve a minimum period of four years’ imprisonment.[4]
[3] At the time Mr Singh was sentenced, this Court was due to hear (in April 2019) several appeals for the purpose of reviewing the Fatu sentencing guidelines for offending involving methamphetamine. The senior lawyer employed by the Public Defence Service (the PDS) who was acting for Mr Singh was aware of this pending review, but she did not seek an adjournment because she understood the Judge, quite properly, would not agree to postpone the sentencing to await the outcome of the Fatu review.
[4] Mr Singh told counsel he wished to appeal against his sentence. Counsel advised him that although the sentence was not manifestly excessive in terms of the Fatu guidelines, a notice of appeal should nevertheless be filed. This would preserve Mr Singh’s position pending the outcome of the Fatu review and ensure parity of sentence with his co‑offenders should they be found guilty following trial. Mr Singh duly signed a notice of appeal on 12 April 2019 and instructed that it be filed. However, the notice of appeal was not filed because in terms of the PDS’s internal Court of Appeal guidelines, approval was required from the PDS senior appeals counsel. This approval was declined because it was considered unlikely that any changes to the guidelines would apply retrospectively to those already sentenced. If this turned out not to be the case, an application for an extension of time to appeal could be made. Counsel relayed this advice to Mr Singh and he accepted it.
[5] This Court delivered its new guideline decision for methamphetamine offending, Zhang v R, on 21 October 2019.[5] This judgment substantially modified the previous Fatu guidelines. For present purposes, Zhang represents a departure from previous sentencing practice based on Fatu in three key respects. First, there is a greater emphasis on the role played by the offender in assessing the appropriate starting point. Those, like Mr Singh, who play a lesser role in such offending can now expect a significantly lower starting point than previously under Fatu.[6] Secondly, as with any other offending, personal mitigating circumstances are to be given all due weight at the second stage of the sentencing exercise.[7] Any suggestion that personal circumstances count for little in this type of offending is wrong. Thirdly, to the extent a practice had developed in the courts that an end sentence of nine years’ imprisonment would automatically trigger a minimum period of imprisonment, such practice must cease as it would be a wrongful exercise of discretion and contrary to s 86 of the Sentencing Act 2002.[8]
[6] Four of Mr Singh’s co-offenders proceeded to trial and were found guilty. They were sentenced by Downs J on 7 November 2019, eight months after Mr Singh was sentenced.[9] The role played by one of Mr Singh’s co‑offenders, Toni Finau, was very similar to that of Mr Singh. Mr Finau helped import three packages containing a total of at least 5.1 kilograms of methamphetamine by providing delivery addresses — his home address and that of a family member. The Judge, applying the new guideline judgment in Zhang adopted a starting point of eight years’ imprisonment for Mr Finau.[10] No minimum period of imprisonment was imposed.
[7] In the result, there is a very significant disparity in the sentences imposed for Mr Singh and Mr Finau, primarily because a starting point of 14 years’ imprisonment was adopted for Mr Singh compared to eight years’ imprisonment for Mr Finau. A minimum period of imprisonment was imposed only on Mr Singh.
[8] Mr Singh therefore applied for leave to appeal to this Court against his sentence out of time. The Crown does not oppose this application in the circumstances we have outlined. We are satisfied it is in the interests of justice to grant an extension of time so that Mr Singh’s appeal can be determined on its merits. We grant it accordingly.
The appeal
[9] Mr Chisnall advances Mr Singh’s appeal against sentence on two grounds.
[10] First, Mr Chisnall contends that the new Zhang guidelines should be applied retrospectively to Mr Singh’s position for the purposes of the appeal. Alternatively, if this Court finds that Zhang does not apply because no notice of appeal was filed before that decision was delivered, the appeal should be treated as one involving trial counsel error.
[11] Secondly, Mr Chisnall relies on the disparity ground. He says this is a case where the disparity in sentence is so great that a reasonably minded independent observer would be concerned that something had gone wrong with the administration of justice.[11]
[12] Mr Chisnall submits that Mr Singh’s sentence should be adjusted in line with the sentence imposed on Mr Finau and the minimum period of imprisonment should be set aside.
[13] Ms Johnston, for the Crown, submits that Zhang does not apply to Mr Singh because no notice of appeal had been filed prior to that judgment being delivered. Further, she argues that the reasonably minded independent observer would take into account that the guidelines for sentencing had changed and therefore would not be concerned that anything had gone wrong with the administration of justice. Ms Johnston also submits that the starting point of eight years adopted for Mr Finau was generous even applying Zhang, as Downs J acknowledged in his sentencing judgment.[12]
Assessment
[14] Consistent with previous practice, this Court stated that the Zhang guidelines would apply to sentences already imposed if, and only if, two conditions are satisfied. First, an appeal against the sentence must have been filed before the Zhang judgment was delivered. Secondly, the application of the Zhang judgment would have to result in a more favourable outcome for the appellant.[13] The second of these two conditions clearly applies. Strictly speaking, the first does not. However, a strict application of this condition would result in a serious injustice for Mr Singh in the circumstances of this case. As noted, Mr Singh instructed counsel that he wished to exercise his right of appeal and he duly signed a notice of appeal on 12 April 2019. This was within the 20 working day appeal period and was more than six months prior to the delivery of the Zhang judgment.[14] Had the notice of appeal been filed in accordance with his instructions, Zhang would undoubtedly apply to Mr Singh’s appeal. To the extent that Zhang does not strictly apply because the notice of appeal was not filed, we accept this should be treated as if it were a case involving trial counsel error. The directions as to retrospectivity given by this Court in Zhang, namely that it would only apply to appeals already filed at the time of delivery of the judgment, were consistent with the practice adopted for previous guideline judgments and therefore could reasonably have been anticipated. It would clearly be unjust to require Mr Singh to bear the serious consequences of the failure of his legal counsel to file his notice of appeal.
[15] In any event, we consider that a reasonably minded independent observer would be concerned that something had gone seriously wrong with the administration of justice if the disparity in the sentences imposed on Mr Singh and Mr Finau is left to stand. The test for an appeal on the ground of disparity is set out in R v Lawson:[15]
It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.
[16] As noted, their offending was very similar. They were both “catchers” — each supplied an address to which the consignments of methamphetamine could be delivered. There were three importations in Mr Finau’s case and two in Mr Singh’s case. The quantities of methamphetamine were slightly higher in Mr Finau’s case, totalling 5.1 kilograms compared to 4.45 kilograms for Mr Singh. The reasonably minded independent observer would be troubled that Mr Singh received a significantly longer end sentence despite having accepted responsibility for his offending and pleading guilty. By contrast, Mr Finau received a much shorter sentence despite proceeding to trial. The major discrepancy in the starting points adopted for these two co-defendants — 14 years compared with eight — is stark and would concern the reasonably minded independent observer. Such an observer would also have difficulty comprehending why Mr Singh was ordered to serve a minimum period of imprisonment whereas his co‑defendant, Mr Finau, was not. It would be hard to escape the conclusion that something appeared to have gone wrong with the administration of justice in this case.
[17] Ms Johnston submits that Mr Finau’s role can be distinguished from that of Mr Singh. She notes that Downs J accepted Mr Finau’s role was “minor” and he had been “drawn into this offending by others and but for their influence, would not have been involved”.[16] However, the same can be said for Mr Singh. His role was the same. He too naively supplied his home address for the deliveries. Moreover, his case involved fewer deliveries and a smaller overall quantity than Mr Finau. Mr Singh was also drawn into the offending by the influence of another. The pre-sentence report for Mr Singh sets this out:
In 2017 Mr Singh ran into his co-offender who was a best friend at school. They spent a lot of time together, staying at each others houses etc. They added each other on Facebook and shortly after that his co-offender contacted him to meet and catch up. Mr Singh explained that at the time he was feeling pretty isolated without many friends, so he was excited to re-connect with his school friend. The co-offender met him in Auckland City and told Mr Singh that he was in the High Court for an alleged kidnapping. When asked if this raised a red flag he agreed that it should have, but he explained that he was sold a convincing story about it being a misunderstanding and he wanted to believe his friend. Mrs Singh confirmed this version of events but admitted she only met the co-offender once.
Mr Singh claimed that his co-offender did not come straight out and ask him to have drugs sent to his address, it was more subtle than that. According to Mr Singh, the co-offender told him there was a lot of media interest in his High Court case and he can’t get things sent to his address because reporters will harass him, which Mr Singh said sounded reasonable at the time. The co‑offender asked him to accept a package for him and he would pick it up. Mr Singh did not think much about this and agreed. Not long after this conversation the co-offender contacted him explaining that the package was being delivered and that Mr Singh would be paid for it. This did raise the alarm bells for him. Mr Singh was paid $10,000 for accepting the package and it was by this time he was sure he had accepted a package of drugs and he had put himself in a difficult position.
...
When asked why he did not raise this with Police, he told the report writer that by this time he knew his friend was a gang member and he was already involved, he felt he could not back out. In addition, Mr Singh was honest that the payment of $10,000 was beneficial to him because he was struggling financially at the time. He used it to pay bills and other things. In other words a combination of fear and monetary incentive kept Mr Singh compliant with the agreement ...
[18] There can be no criticism of the starting point adopted by Lang J applying Fatu. Rather, this case illustrates the significance of the new guidelines in Zhang for offenders like Messrs Finau and Singh who play lesser roles in this type of offending, particularly in circumstances where their involvement has been procured by deception or manipulation on the part of co-offenders higher up the chain.
[19] We consider that the starting point of eight years’ imprisonment adopted by Downs J for Mr Finau was an appropriate exercise of discretion in accordance with Zhang. The Crown has not appealed against this sentence. We note that Mr Finau continued to deny his involvement at sentencing and claimed not to have received any financial gain. However, the Judge rejected this, saying his “stance [was] irreconcilable with the verdicts and evidence”.[17] By comparison, Downs J adopted a starting point of five years’ imprisonment for another co-offender, Halene Ikuia, who was paid $5,000 for providing his business address for the importation of a smaller quantity of methamphetamine (449 grams).
[20] We are satisfied that Mr Singh is in materially the same position as Mr Finau and a similar starting point should be adopted. While the quantity involved puts them both in band five of Zhang (> 2 kilograms), they each played a lesser role.[18] They both performed a limited function under the direction and influence of others. They had no awareness of the scale of the operation and received comparatively modest financial gain. A starting point of eight years, although below the indicative band, is nevertheless consistent with this Court’s guidance in Zhang, which contemplates movement between bands,[19] and is appropriate to reflect proper parity between co‑offenders who were in materially the same position.
[21] Mr Chisnall submits that a more generous discount for personal mitigating circumstances is required, in light of this Court’s guidance in Zhang. Lang J accepted that Mr Singh was of previously good character and was genuinely remorseful.[20] He acknowledged that the offending occurred “at a low point” in Mr Singh’s life, after his mother had died. However, he made no allowance for this because Mr Singh was 24 years of age and engaged in the offending for reward with his “eyes open”.[21] Mr Chisnall submits that a further discount ought to have been allowed in all the circumstances, particularly taking into account Mr Singh’s low risk of re-offending and his strong prospects for rehabilitation. Again, Mr Chisnall points to the disparity with Mr Finau. The latter received a 15 per cent discount for previous good character and rehabilitative prospects,[22] whereas Mr Singh received a discount of slightly less than four per cent (six months) for previous good character.
[22] The pre-sentence report notes that Mr Singh is of Tongan and Indo-Fijian descent. He is an only child. His father died when Mr Singh was aged six. His mother could not keep up with the mortgage payments on the family home and they ended up losing it, resulting in them moving to a state house in South Auckland where he had an austere upbringing. Nevertheless, Mr Singh enjoyed a particularly strong bond with his mother, partly as a result of their shared hardship. Sadly, his mother also died at a young age, when Mr Singh was 23. After her death, Mr Singh struggled to the point of even contemplating suicide.
[23] Paula Taumoepeau is Mr Singh’s great uncle. He is a 71 year old of Tongan birth who has lived in New Zealand since 1975. He is a retired accountant and a former lay advocate for the Manukau District Court. He is also a member of the Tongan Church Leaders Association and takes an active role in helping Tongan people living in New Zealand. Mr Taumoepeau provided a cultural report pursuant to s 27 of the Sentencing Act for the purposes of sentencing in the High Court. He states that after Mr Singh’s mother died, Mr Singh moved into the central city, away from the support of his friends and wider family. Mr Taumoepeau does not suggest that these circumstances provide any excuse for, or were causative of, Mr Singh’s offending. However, they provide relevant context:
... after Shane’s father, Ajay had died as well as the loss of their family home, there had been reduced family contact with ‘Ofa and Shane at a time that Shane was becoming a young adult. And when Shane’s mother ‘Ofa passed away, it was the first time at her funeral that some of the family had seen Shane in several years. And from that time since the funeral there was even less contact with Shane. Shane had become “a ship lost at sea” with neither support from his Indo-Fijian family, nor his Tongan family. He was left with no identity. For that we, his Tongan family are ashamed as I am sure his Indo‑Fijian family are.
[24] Mr Singh’s wife stated in a letter to the Judge that it was a traumatic time in their lives after Mr Singh’s mother died. They were both 23 years of age and had to organise every aspect of the funeral. They also had to move out of the family home as they no longer qualified for a state house. They relocated to the city to be closer to work. Mr Singh then decided to leave his employment of four years to study at the Manukau Institute of Technology. Mrs Singh said she supported this decision and Mr Singh studied almost every night in his determination to successfully complete his studies. He graduated in April 2018 with a Certificate in Automotive and Mechanical Engineering. Mrs Singh said that although it was tough financially, they were both hopeful for a bright future. She acknowledges Mr Singh made a poor decision to become involved in the offending and the consequences have been hard on her as well.
[25] We consider that these background circumstances, which partly explain Mr Singh’s out-of-character offending, coupled with his low risk of reoffending and strong prospects for rehabilitation could well justify a further sentencing discount of the order of six months. However, given the somewhat generous starting point, we do not consider any further adjustment to the discounts allowed by Lang J is warranted. The discounts he allowed, together totalling 12 months, are now proportionately greater given the reduced starting point we have adopted.
[26] The adjusted sentence is therefore calculated as follows:
- (a) Starting point — eight years’ imprisonment.
- (b) Discount allowed by the Judge for previous good character — six months.
- (c) Discount allowed by the Judge for genuine remorse — six months.
- (d) Adjusted starting point — seven years’ imprisonment.
- (e) Discount allowed by the Judge for guilty plea — 20 per cent (approximately 17 months).
- (f) End sentence — five years, seven months’ imprisonment.
[27] Lang J correctly noted the common practice of imposing a minimum period of imprisonment in cases such as this:[23]
[21] The final issue is that of minimum term. The courts have regularly said that serious drug offending such as this will almost always satisfy s 86 of the Sentencing Act 2002. Section 86 permits a Court to impose a minimum term of imprisonment if it considers that the usual parole provisions would not be sufficient to satisfy the sentencing principles of deterrence, denunciation, the need to hold the offender accountable and, in some cases, the protection of the community.
[22] In your case I consider that the first three of those elements are engaged. I do not consider you to be in a position of vulnerability or to have any other characteristics that would militate against the imposition of a minimum term. However, I propose to reduce the minimum term from that which might ordinarily be imposed to reflect the low-level you held in this importation enterprise. I consider a minimum term of imprisonment of four years is appropriate to reflect the sentencing principles to which I have referred.
[28] This assessment was very much in accordance with the sentencing practice that had become the norm under Fatu. However, it can no longer be justified following Zhang, particularly for low-level offenders. The statement that this type of drug offending will almost always satisfy s 86 is no longer correct. The need to identify characteristics to “militate against the imposition of a minimum term” is no longer the correct approach.[24] Zhang now makes clear that there “are no presumptions, no rules of thumb”.[25] We do not consider a minimum period of imprisonment is required in all the circumstances of Mr Singh’s case.
[29] We wish to again emphasise that there is no criticism of the sentencing exercise carried out by Lang J. It was entirely consistent with the sentencing practice that had developed following Fatu. As we have said already, the outcome of this appeal simply illustrates the significance of the new guideline judgment in Zhang for offenders like Mr Singh who play a lesser role in this type of offending.
Result
[30] The application for an extension of time to appeal is granted.
[31] The appeal against sentence is allowed.
[32] The sentence of 10 years and four months’ imprisonment is set aside and substituted with a sentence of five years, seven months’ imprisonment.
[33] The minimum period of imprisonment imposed of four years is set aside.
Solicitors:
Crown Law Office,
Wellington for Respondent.
[1] R v Singh [2019] NZHC 498 [Sentencing judgment].
[2] At [11]–[14], referring to R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).
[3] At [16]‑‑–[20].
[4] At [22].
[5] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[6] At [123].
[7] At [136].
[8] At [172].
[9] R v Fangupo [2019] NZHC 2896.
[10] At [30]–[31].
[11] R v Lawson [1982] NZCA 67; [1982] 2 NZLR 219 (CA) at 223.
[12] R v Fangupo, above n 9, at [33].
[13] Zhang v R, above n 5, at [188].
[14] Criminal Procedure Act 2011, s 248(2).
[15] R v Lawson, above n 11, at 223.
[16] R v Fangupo, above n 9, at [31].
[17] At [44].
[18] Zhang, above n 5, at [125].
[19] For example, see at [10(e)].
[20] Sentencing judgment, above n 1, at [17]–[18].
[21] At [19].
[22] R v Fangupo, above n 9, at [45].
[23] Sentencing judgment, above n 1.
[24] At [22].
[25] Zhang v R, above n 5, at [174].
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