Annalingam v Police - [2017] NZHC 2803

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2017-404-296 [2017] NZHC 2803

BETWEEN
SRI RAJ ANNALINGAM

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 13 November 2017

Counsel:

J Wiles & Ms Rogers for Appellant
M Mortimer for Respondent

Judgment:

13 November 2017

INTERIM JUDGMENT OF DUFFY J

Solicitors/Counsel:
Meredith Connell, Auckland

ANNALINGAM v NEW ZEALAND POLICE [2017] NZHC 2803 [13 November 2017]

J H Wiles, Barrister, Auckland

Introduction

[1] The appellant, Mr Sri Raj Annalingam, pleaded guilty to four charges of theft and two charges of dishonestly using a document. He was sentenced in the District Court to 25 months’ imprisonment and required to pay $14,000 in reparation. He now appeals against the sentence of 25 months’ imprisonment.

The offending

[2] The first charge of theft relates to events that occurred on 18 November 2014. Mr Annalingam purchased a water blaster valued at $2,499 and a lawnmower valued at $1,249 from the Stihl shop in Kumeu. He paid using a BNZ cheque, which staff then attempted to bank. They were unable to do so due to insufficient funds in
Mr Annalingam’s account. When contacted by staff, Mr Annalingam said he would arrange payment, but this never eventuated. Instead, he sold the water blaster to an associate.

[3] The second and third charges of theft relate to Mr Annalingam renting two vehicles from Direct Car and Truck Rentals Ltd in September 2015. He did not return the vehicles at the agreed time, but rather sold them to pawnbrokers. The vehicles were valued at $11,500 and $4,600 respectively.

[4] The final charge of theft relates to Mr Annalingam renting a vehicle from Matthew Rentals in December 2015. Once again he did not return the vehicle within the agreed time, but swapped it for another vehicle at a pawnbrokers. The vehicle was valued at $7,000.

[5] The two charges of dishonestly using a document relate to Mr Annalingam’s purchases on 25 November 2015 (a push mower for $750) and 23 December 2015 (a ride-on lawn mower for $4,500). On each occasion he presented cheques in payment for the goods when he knew not only that there were insufficient funds in the bank account to honour the cheque, but that the account had in fact been closed.

Mr Annalingam’s personal circumstances

[6] Mr Annalingam is 46 years of age. He is of Sri Lankan descent and arrived in New Zealand in 1999. He has since accumulated a long list of criminal convictions, the first of which occurred in 2003. His history includes 17 convictions for accessing computer systems for dishonest purposes, 23 convictions for using a document for pecuniary advantage, four convictions for obtaining by deception and one conviction for receiving stolen property.

[7] The pre-sentence report provided to the District Court states that

Mr Annalingam lacks insight into his offending. Contributors to his offending include his sense of entitlement, lack of remorse, poor problem solving skills, poor self-control and impulsivity. He is…

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.

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Details

Case: [2017] NZHC 2803
Decision Date: 13 November 2017

CaseChat Overview and Summary

In Annalingam v Police, the appellant, Mr Sri Raj Annalingam, appealed against his 25-month imprisonment sentence for theft and dishonest use of a document. The appeal was heard by Duffy J in the High Court of New Zealand. Mr Annalingam argued that the sentence was manifestly excessive due to insufficient information being before the court at the time the sentence indication was given, an inadequate pre-sentence report, and insufficient regard being had to his personal circumstances and potential rehabilitation. The Crown submitted that the appeal was filed out of time and that the sentence was within the range that could be justified by accepted sentencing principles. Duffy J granted leave to appeal out of time and found that the sentence was not manifestly excessive. However, the appeal was adjourned part heard to allow Mr Annalingam to provide evidence of any material change in his wife's health condition since he was sentenced by Judge Powell.

The court found that the sentence indication given by Judge Powell was sufficiently certain, and that the pre-sentence report, while sparse, accurately reflected Mr Annalingam's extensive criminal history and the need for a realistic expression of denunciation and deterrence. The court also found that Judge Powell had properly considered Mr Annalingam's personal circumstances, including his wife's health condition and the needs of his children. However, the court noted that if Mr Annalingam could provide evidence of a material deterioration in his wife's health condition since sentencing, the court would be prepared to consider whether the sentence should be interfered with on appeal. The hearing was adjourned to allow Mr Annalingam to file additional submissions on this ground.

Orders