Chand v Police - [2017] NZHC 1119

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2017-470-8 [2017] NZHC 1119

BETWEEN
AMIT CHAND

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 26 May 2017

Counsel:

S Bhardwaj for Appellant
A J Pollett for Respondent

Judgment:

26 May 2017

JUDGMENT OF BREWER J

Solicitors:
Bridge Law (Hamilton) for Appellant
Hollister-Jones Lellman (Tauranga) for Respondent

CHAND v POLICE [2017] NZHC 1119 [26 May 2017]

Introduction

[1] Mr Chand seeks leave to appeal out of time against a conviction and sentence imposed on him by Judge TR Ingram in the District Court at Tauranga on
21 November 2016.1 On that date, Mr Chand had a charge of male assaults female

proven against him. The sentence was nine months’ supervision, with a special condition that he undertake and complete such courses as may be required by his probation officer. He was also fined $400 and ordered to pay Court costs of $130.

[2] Mr Bhardwaj, who is appearing for Mr Chand, advises that to the best of his belief and knowledge that sentence has been completed.

[3] The reason why leave to appeal is sought after so much time is that Mr Chand has been served with a deportation order. In an affidavit affirmed by Mr Chand on
30 January 2017, he deposes to the effect that at the time of his conviction and sentencing he did not know about the possibility of seeking a discharge without conviction. Had he known that this was a possibility, then he would have pursued it because of his precarious immigration status.

[4] The state of the file as at today is too incomplete for me to be able to decide both the application for leave to appeal and the underlying appeal against conviction and sentence. That is because, although privilege has been waived, there has been no time for the Crown to seek a report from counsel representing Mr Chand during his trial on the charge of male assaults female and on the subsequent sentencing.

[5] The course I have taken is to assume the best possible position for Mr Chand and to then look to see whether there are prima facie merits in the submission that a discharge without conviction is a real possibility.

[6] Mr Bhardwaj is quite clear that the only consequence out of the ordinary for Mr Chand of his conviction was the jeopardy it placed him in for deportation. Apparently Mr Chand had been earlier convicted of a drink driving offence.
Deportation proceedings were then initiated. However, Mr Chand put his case and

1 Police v Chand [2016] NZDC 26851.

the Minister suspended deportation action. In a letter from the Ministry dated

4 December 2015, Mr Chand was advised of this but was also warned that any further conviction for criminal offending would result in the deportation notice being reactivated.

[7] Therefore, at the time of his conviction for male assaults female, a known consequence to Mr Chand of a conviction would be the reactivation of the deportation notice. This…

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 1119
Case: [2017] NZHC 1119
Decision Date: 26 May 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Chand sought leave to appeal out of time against a conviction and sentence imposed by the District Court at Tauranga on 21 November 2016. Chand was convicted of male assaults female and sentenced to nine months' supervision, a $400 fine, and ordered to pay $130 in court costs. Chand's appeal was delayed due to his precarious immigration status, which he was unaware of at the time of his conviction. As a result, he did not seek a discharge without conviction. The appeal was sought after deportation proceedings were initiated against Chand. The legal issue in this case was whether Chand's appeal should be granted despite being out of time, considering the exceptional circumstances of his case.

The court considered the criteria for granting a discharge without conviction under Section 107 of the Sentencing Act 2002. The court found that it was arguable that the consequences of the conviction, specifically the risk of deportation, were out of proportion to the gravity of the offence. The court noted that the offence was a double act of domestic violence, occurring in front of a CCTV camera. The court also considered the effect of the conviction on Chand's immigration status and the potential for the breakup of his family unit. The court concluded that it was at least arguable that the discretion of the Court might exist in this case and granted leave to appeal.

The court directed the Crown to obtain a report from Mr Tuck, who was counsel for Chand at the time of his trial and sentencing. The court set a timetable for the appeal, with the Crown required to serve the report by 16 June 2017, any affidavit in response from Chand by 30 June 2017, and the appeal date to be identified in late July or early August 2017. Chand was required to file and serve his submissions no later than 10 working days before the appeal date, and the Crown was required to file and serve its submissions no later than five working days before the appeal date.

Orders