Chahal v Police - [2022] NZHC 3276

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-378

[2022] NZHC 3276

BETWEEN
HARMANDEEP SINGH CHAHAL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 7 December 2022

Appearances:

P J Kaye for appellant

C F Anyon-Peters for respondent

Date of judgment:

7 December 2022

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:
P J Kaye, Barrister, Auckland Meredith Connell, Auckland

CHAHAL v POLICE [2022] NZHC 3276 [7 December 2022]

[1] Harmandeep Singh Chahal appeals against the 10 February 2022 and 20 September 2022 decisions respectively of Judges G A Fraser and C M Ryan in the District Court at Auckland.1 Judge Fraser declined to discharge Mr Chahal without conviction, and Judge Ryan sentenced him to six months’ supervision and 100 hours’ community work, on his guilty pleas to charges of burglary,2 injuring with intent,3 and trespass.4

Background

[2] The charges arose from Mr Chahal’s uninvited attendance at the victim’s home on 20 October 2020, from which he had been trespassed a week earlier. Together with another person, he entered the house and attacked the victim, punching and kicking her to and when on the ground, abusing her as they did so. The offending bore overtones of family violence as Mr Chahal briefly had been in a relationship with the victim.

Judgments under appeal

[3] Mr Chahal was entitled to be discharged without conviction only if the direct and indirect consequences of his conviction were out of all proportion to the gravity of the offences.5 The proportionality test is a question of fact requiring judicial assessment.6 A three-step analysis — the gravity of the offending; the direct and indirect consequences of a conviction; and if those consequences are out of all proportion to the gravity — is required.7 There must be a “real and appreciable” risk any given consequence will arise; this recognises the court is assessing future

1      Police v Chahal [2022] NZDC 2231 [“Section 106 decision”]; and Police v Chahal [2022] NZDC 18727 [“Sentencing decision”].
2      Crimes Act 1961, s 231(1)(a); maximum penalty, 10 years’ imprisonment.
3      Section 189(2); maximum penalty, five years’ imprisonment.
4      Trespass Act 1980, ss 4(4) and 11(2)(a); maximum penalty, $1000 fine or three months’ imprisonment.
5      Sentencing Act 2002, ss 106–107; and Scott v R [2019] NZCA 261 at [78]–[80], citing Prasad v R [2018] NZCA 537 at [11].
6      Dickins v R [2012] NZCA 265 at [14], citing H (CA680/11) v R [2012] NZCA 198 at [30] (citing R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11], citing R v Rajamani [2007] NZSC 68, [2008] 1 NZLR 723 at [5]).
7      Sentencing Act, s 107; Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [14] (cited in Bailey v R [2022] NZCA 335 at [30]); Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8] (cited in Doyle v R [2022] NZCA 307 at [10]); R v Hughes, above n 6, at [16]–[17] (cited…

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: [2022] NZHC 3276
Decision Date: 7 December 2022

CaseChat Overview and Summary

The appeal by Harmandeep Singh Chahal against the Auckland District Court's decision to not discharge him without conviction and his subsequent sentencing was heard on 7 December 2022 and a judgment delivered on the same day. Chahal was found guilty of burglary, injuring with intent, and trespass following an incident in which he, along with another person, attacked a woman in her home. Chahal had previously been trespassed from the house. The legal issues in the case centred around the proportionality of the consequences of Chahal's conviction against the gravity of his offending and whether the sentence imposed was appropriate. The court had to determine whether the consequences of Chahal's conviction were out of all proportion to the gravity of the offending and if the sentence imposed was manifestly excessive.

The court found that Judge Fraser's assessment of the offending as moderately serious was not erroneous and that the potential consequences of conviction, such as restrictions on employment, immigration, and travel, were appropriately considered. The court also found that the sentence imposed, six months' supervision and 100 hours of community work, was not manifestly excessive and was a generous resolution considering the circumstances. The appeal was dismissed, and the original decision of the District Court was upheld.

Orders