This judgment was delivered by me on Friday 8 September 2017 at 4 pm
Pursuant to Rule 11.5 of the High court Rules.
Registrar/Deputy Registrar
Date:…………………………

Counsel/Solicitors:
S Bhardwaj, Bridge Law, Hamilton
A J Pollett, Crown Solicitors, Tauranga
AZM Shore, Crown Solicitors, Tauranga

CHAND v NEW ZEALAND POLICE [2017] NZHC 2188 [8 September 2017]

Background

[1] Amit Chand was convicted of a single charge of male assaults female by Judge Ingram in the District Court at Tauranga on 21 November 2016.1 That offence carries a maximum penalty of two years’ imprisonment.2

[2] Mr Chand was sentenced to nine months’ supervision on the condition that he undertakes and completes such courses, counselling and training as may be required by the probation officer to deal with the causes of his offending (including alcohol counselling as required). He was also fined $400 and ordered to pay Court costs of
$130.

[3] Mr Chand now appeals against his conviction and sentence on the grounds that his trial counsel failed to inform him of the possibility of applying for a discharge without conviction.3 Underlying Mr Chand’s appeal is the fact that he is an Indian national who, absent intervention of the Minister, will be deported if the conviction stands. That is because he has a previous (2015) conviction for driving with excess breath alcohol and a condition of not being deported at the time was that he not offend again within five years.

[4] The position is further complicated because he has latterly become the sole caregiver for his daughter aged 11 months.

[5] In light of that development the police do not oppose the appeal and the discharge of Mr Chand without conviction.

[6] Mr Bhardwaj says that were the Court minded to grant the appeal, it would be appropriate that the penalties otherwise imposed remain. Indeed he says his client
welcomes the opportunity to participate in counselling, treatment or training.

1      Police v Chand [2016] NZDC 26851.
2      Crimes Act 1961, s 194(b).
3      Brewer J granted Mr Chand leave to appeal out of time; see Chand v New Zealand Police [2017] NZHC 1119.

[7] At the conclusion of the hearing I allowed the appeal with reasons to follow. I reserved the question of whether the existing penalties could stand for further consideration.

The offending

[8] At the time of the offending, Mr Chand and the victim were in a relationship and the victim was 35 weeks pregnant with Mr Chand’s child.

[9] On Thursday 28 July 2016, Mr Chand and the victim had an altercation on the staircase of a Tauranga bar. Mr Chand had been on the second floor of the bar,…

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 Chand v Police

Details

AGLC: Chand v Police [2017] NZHC 2188
Case: [2017] NZHC 2188
Decision Date: 8 September 2017

CaseChat Overview and Summary

Amit Chand appeals his conviction for the charge of male assaults female and the sentence imposed on him. He contends that his trial counsel failed to inform him of the possibility of applying for a discharge without conviction. The appeal raises questions about whether trial counsel's failure to advise Mr Chand of this option amounted to an error that affected the outcome of the trial. The court must consider whether justice has miscarried by evaluating if the trial counsel's error had a real risk of affecting the outcome and if the consequences of conviction are out of all proportion to the gravity of the offence.

The court finds that the trial counsel erred by not raising the possibility of a discharge without conviction with Mr Chand, given his vulnerable immigration status. The court further finds that the error created a real risk that the outcome was affected, as Mr Chand now faces deportation, which would leave his 11-month-old daughter without a parent responsible for her care. The court concludes that the consequences of conviction are out of all proportion to the gravity of the offence, particularly considering the personal circumstances of Mr Chand. The court allows the appeal and discharges Mr Chand without conviction on the charge of male assaults female.

The court declines to maintain the penalties imposed on Mr Chand, as they were not mandatory and not required to be made on conviction. The court encourages Mr Chand to voluntarily seek counselling for anger management.

Orders