Chand v Police

[2020] NZHC 1367

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-0098

[2020] NZHC 1367

BETWEEN

AMITESH CHAND

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

16 June 2020

Appearances:

J Y Yi for Appellant

W N Fotherby for Respondent

Judgment:

17 June 2020

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 17 June 2020 at 3 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:           Meredith Connell, Crown Solicitor, Auckland Counsel: J Y Yi, Auckland

CHAND v POLICE [2020] NZHC 1367 [17 June 2020]

[1]    The appellant, Mr Chand, appeals against a decision of Judge C S Blackie in the District Court at Auckland on 5 March 2020.1 The Judge declined Mr Chand’s application to be discharged without conviction on one charge each of operating a vehicle carelessly, receiving stolen property (over $1,000) and failing to answer District Court bail.2 The Judge fined Mr Chand $400 for the careless driving offending, and sentenced him to 60 hours’ community work on the receiving offending, and 40 hours’ community work for failing to answer bail.

[2]    Mr Chand’s appeal is unusual in that he seeks to appeal only the refusal of the discharge on the receiving offending. As with any appeal, however, Mr Chand must persuade me the Court below was wrong, and in this case that means wrong to decline a discharge when Mr Chand faced three charges. Subject to that, it is for me to reach a decision on my own view of the merits.3

Applicable law

[3]    A judge may grant a discharge without conviction if the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.4 In determining whether the consequences would be so disproportionate, the Judge must assess the gravity of the offending having regard to the aggravating and mitigating factors of the offending and offender; identify the likely direct and indirect consequences of a conviction; and then assess whether the latter are out of all proportion to the former.5

Background

[4]    The charge in respect of careless use of a motor vehicle arose from events on 23 April 2019 when Mr Chand was using a cellphone while driving. He veered off the road, collided with a parked vehicle and caused extensive damage to both vehicles.

1      Police v Chand [2020] NZDC 5034.

2      Crimes Act 1961, ss 246 and 247(a); Land Transport Act 1998, s 37(1); and Bail Act 2000, s 38.

3      R v Taulapapa [2018] NZCA 414 at [18] citing H (CA680/2011) v R [2012] NZCA 198 at [35]–[36].

4      Sentencing Act 2002, ss 106 and 107.

5      Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].

[5]    The receiving charge arose from events which commenced on 6 May 2019. Early that morning, Mr Chand was returning home from work, driving his mother’s car.  What follows is Mr Chand’s evidence as to what occurred.  En  route home,   Mr Chand gave a ride to an old acquaintance, Mr Prasad. Mr Prasad and Mr Chand had a “history”, in that in 2017 Mr Prasad had stolen Mr Chand’s own car. Apparently they resolved to put that in the past, and ended up spending the day together, with  Mr Prasad promising to share with Mr  Chand  winnings  from pokie machines, if  Mr Chand continued to drive him about.

[6]    Early on 7 May 2019, Mr Chand and Mr Prasad picked up a female associate of Mr Prasad’s. At some point there was an argument, culminating in the woman and Mr Prasad driving away in Mr Chand’s mother’s vehicle, and leaving Mr Chand on the street. Mr Chand walked to Manukau Police Station and reported the incident.

[7]    On 8 May 2019, Mr Chand and his brother were on their way to Mr Prasad’s parents’ house to complain about the theft. Before they got there, Mr Prasad and two associates drove past;  Mr Prasad stopped; Mr Chand and his brother got in; and    Mr Prasad  apologised and said to make up  for this second  theft  he would give    Mr Chand the car he was currently driving as it was the same model as Mr Chand’s mother’s car. Mr Chand knew the car was stolen as there was a screwdriver in the ignition. Mr Prasad instructed Mr Chand on how to start the car with the screwdriver, told him the ownership of the car could be changed, suggested Mr Chand wear gloves while driving and also suggested the car could become “legit”.

[8]    Mr Chand drove away in the stolen car, and when apprehended by the Police that evening in Mission Bay, was driving the vehicle with two passengers.

[9]    The charge of failing to answer District Court bail arose when Mr Chand failed to appear in July 2019 and a warrant had to be issued for his arrest.

District Court decision

[10]   As I have said, Mr Chand’s application to be discharged was in respect of all three offences. The first matter for the Judge was to determine the gravity of the offending in the manner referred to in [3] above. In assessing that matter, the Judge

focused on the receiving charge and assessed it as a “relatively serious offence”.6 In doing so, the Judge had regard to the maximum penalty of seven years’ imprisonment; the important role receivers’ play in theft and burglary offending; the victim’s interests; that Mr Chand knew the car was stolen; and that the vehicle was recovered as a result of Police work, rather than Mr Chand coming to his senses.7

[11]   The consequences of conviction on which Mr Chand relied were risks to his future employment, in particular his aspirations to become a Customs Officer at  New Zealand Customs Service (“Customs”), and the “social stigma” arising from convictions.

[12]   The Judge accepted the convictions were likely to affect Mr Chand’s prospects with Customs and in this the Judge was clearly focusing on the receiving charge. The Judge was not persuaded, however, that Customs should not know of the receiving conviction in assessing any application by Mr Chand, given a Customs Officer must be of the utmost integrity.8 Nor did the Judge consider the convictions would preclude Mr Chand finding other employment.9

[13]   As to social stigma, the Judge thought that went “with the territory” on conviction for any offending but would be short-lived.10

[14]   Ultimately the Judge was not persuaded the consequences identified were out of all proportion to the  gravity  of  the  offending,  and  he  declined  to  discharge Mr Chand.

Discussion

Gravity of the offending

[15]   Counsel for Mr Chand, Mr Yi, contends the Judge erred in assessing the gravity of the offending, as he failed to take into account mitigating factors relating to the

6      Police v Chand, above n 1 at [9].

7      At [4] and [8].

8 At [10].

9 At [10].

10 At [12].

offending and offender. Had the Judge done so, Mr Yi submits the Judge would have determined the gravity of the offending as “low”.

[16]   The mitigating factors are Mr  Chand’s  relatively  young  age  of  22;  that Mr Chand received the vehicle in what Mr Yi submitted were the exceptional circumstances of it being a replacement vehicle for his mother’s; that Mr Chand has no previous convictions; pleaded guilty at the earliest opportunity; is unlikely to appear before the Court again; and his genuine remorse. Mr Yi submitted the Judge knew of these mitigating factors because he referred to them in sentencing.

[17]   I accept the Judge did not refer expressly to mitigating factors when assessing the gravity of the offending, and it is preferable this is done. Regardless, even if I allow Mr Chand to narrow his appeal as he has, and I take into account those mitigating factors, I am not persuaded Mr Chand met the threshold for a discharge without conviction on the receiving offending.

[18]   Mr Chand knowingly accepted a stolen vehicle and, on the evidence before me, drove it around for many hours before he was stopped by the Police. This was not a case of Mr Chand driving the vehicle a short distance and then abandoning it, realising the stupidity of his actions. He kept it.  For myself, I find the suggestion  Mr Chand was going to give this vehicle to his mother implausible, given it was not her vehicle and it had a screwdriver sticking out of the ignition. Even allowing for Mr Chand’s youth, the offending was at least moderately serious, which is largely as the Judge described it.

[19]   As Mr Fotherby for the Police submitted, however, whether the offending was of moderate or serious gravity, the critical issue is whether the consequences of conviction are out of all proportion. If so, there should be a discharge and, if not, the application must be declined.

Consequences of conviction

[20]   As the Judge said, Customs should know of this offending when they assess Mr Chand’s suitability for training as a Customs Officer. The receiving charge is relevant to whether potential employers, including Customs, consider Mr Chand to be

a suitable candidate. As noted in R v Taulapapa, while a conviction may affect a person’s career, this consequence must usually yield to an employer’s right to know, and so cannot usually be considered a consequence “out of all proportion” to the gravity of the offending.11 That is particularly so for a responsible position such as a Customs Officer.

[21]   Mr Yi did not press any submission as to “social stigma”. I agree with the Judge such could not possibly warrant a discharge for this type of offending.

Result

[22]I dismiss this appeal.

Peters J

11     R v Taulapapa, above n 3, at [42(a)].