Anand v R - [2015] NZHC 397

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-93 [2015] NZHC 397

BETWEEN
AROKIADASS ANAND

Appellant

AND

THE QUEEN Respondent

Hearing: 3 March 2015

Appearances:

S Gill for appellant
M L Wong for respondent

Judgment:

9 March 2015

JUDGMENT OF CLIFFORD J

Introduction

[1] The appellant, Arokiadass Anand, pleaded guilty shortly before trial to one representative charge of sexual connection with a young person and two representative charges of doing an indecent act on a young person. On 1 October
2014 Judge Tompkins sentenced Mr Anand to four years’ imprisonment.1

[2] Mr Anand now appeals his sentence. The single ground of appeal advanced by Mr Anand is that the four and a half year starting point adopted by the Judge was too high because his offending did not involve sexual intercourse. The correct starting point range was three to three and a half years. He says his sentence was, therefore, manifestly excessive.

Facts

[3] Mr Anand’s offending occurred over a period of some two years, from 2011

to 2013.

1 R v Anand DC Lower Hutt CRI-2014-096-002641, 1 October 2014.

[4] The first instance of offending occurred at Mr Anand’s home, when his victim was around 13 years old. His victim, her younger brother, Mr Anand’s children and Mr Anand had been at the beach. They returned to Mr Anand’s home where he encouraged his victim to lay down with him. He stroked his victim’s body and then squeezed her breasts. He told her not to tell anyone.

[5] From then, Mr Anand and his victim regularly sent text messages to each other and spoke on the phone. The conversations quickly became sexually explicit. Mr Anand encouraged his victim to participate in phone sex. The two met on multiple occasions during his period. When they were together Mr Anand touched his victim around her genital area and touched and sucked her breasts.

[6] Mr Anand’s offending against his victim escalated to oral sexual connection on two occasions, where he put his penis into his victim’s mouth and moved her head back and forth until he ejaculated.

[7] The final incident of offending occurred at a party held by the victim’s family. By that time she was 14 years old. During the festivities Mr Anand followed his victim out of the sight of her family, pulled her top down and began kissing and biting her breasts. Mr Anand removed his penis from his pants and guided his victim to masturbate him.

The sentencing decision

[8] The Judge set a four and a half year starting point for the offending overall on the basis of the Court of Appeal’s decision in R v H2 and the various aggravating factors present. The Judge identified those factors as premeditation and grooming, the two year period of the offending, the age disparity between Mr Anand and his victim, the breach of trust inherent in the offending and the traumatic and devastating effect that Mr Anand’s offending had on his young victim.

[9] The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anand v R

Details

AGLC: Anand v R [2015] NZHC 397
Case: [2015] NZHC 397
Decision Date: 9 March 2015

CaseChat Overview and Summary

The appeal before the Court concerns the sentencing of Mr Anand, who had pleaded guilty to one charge of sexual connection with a young person and two charges of doing an indecent act on a young person. Mr Anand's sentence was four years' imprisonment, with a starting point of four and a half years. Mr Anand contends that the starting point was too high, arguing that it should have been three to three and a half years, as his offending did not involve sexual intercourse. Mr Anand submits that, given this, his sentence was manifestly excessive.

The Court considered whether the starting point set by the sentencing judge was appropriate. The Court noted that the starting point for sexual connection with a young person, as established by the Court of Appeal in R v H, was four years' imprisonment. The Court observed that Mr Anand's offending was similar to that in R v H, in that it involved abuse of trust, a significant age gap, and multiple instances of offending. The Court found that the starting point of four and a half years was justified, taking into account the totality of Mr Anand's offending.

The Court dismissed Mr Anand's appeal against his sentence. The Court found that the starting point of four and a half years was appropriate, and that the sentence imposed by the sentencing judge was consistent with Court of Appeal authority. The Court concluded that the sentence was not manifestly excessive, and that the appeal should be dismissed.

Orders