Chand v The Queen

[2017] NZHC 1335

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-186 [2017] NZHC 1335

BETWEEN

RADESH CHAND

Appellant

AND

THE QUEEN Respondent

Hearing:	16 June 2017
Counsel:	N C Wintour for Appellant H G Max for Respondent
Judgment:	16 June 2017

JUDGMENT OF BREWER J

Solicitors/Counsel:

Nicholas Wintour (Auckland) for Appellant

Crown Law (Wellington) for Respondent

CHAND v THE QUEEN [2017] NZHC 1335 [16 June 2017]

Introduction

[1]      Mr Chand is in prison, having been sentenced to 27 months’ imprisonment by Judge  S  Moala  in  the  District  Court  at  Papakura.    Mr  Chand  is  appealing  his sentence and he wishes to be released on bail until his appeal against sentence has been determined.  He asked Judge Moala for bail and the Judge refused it, giving her reasons in a judgment dated 5 May 2017.1   Mr Chand now appeals that refusal.

Background

[2]      Mr Chand was charged with causing grievous bodily harm to his wife with intent to cause her grievous bodily harm.  He defended that charge.

[3]      On the day that the trial was to commence, the Crown laid an alternative charge of causing grievous bodily harm with intent to injure.  That charge carries a maximum  sentence  of  seven  years’ imprisonment  as  opposed  to  the  maximum sentence of 14 years’ imprisonment that the former charge carries.  Mr Chand at once pleaded guilty to the alternative charge of causing grievous bodily harm with intent to injure.  That was on 4 May 2017.  The trial proceeded on the more serious charge and Mr Chand was acquitted.

[4]      The difficulty for Mr Chand, as someone who has pleaded guilty to a charge and who has been sentenced to a term of imprisonment, is that there is a high threshold he has to cross in order to get out of prison.  Mr Chand’s case is governed by s 14 of the Bail Act 2000.  This stipulates that a Judge must not grant bail unless the Judge is satisfied, on the balance of probabilities, that it would be in the interests of justice to do so.

[5]      As Judge Moala noted, the Court of Appeal has determined that an appellant will only be granted bail pending an appeal in exceptional circumstances.2

1      R v Chand [2017] NZDC 9203.

2      Ellis v R [1998] 3 NZLR 555.

[6]      Other cases describe the threshold as meaning that the prospects of success on appeal need to be “very strong”3 or “compelling”.4   Further, the discharge of the onus,  the  ability to  cross  the  threshold,  may be  particularly difficult  where  the defendant has pleaded guilty.5  All of those factors apply here.

[7]      Mr Wintour for Mr Chand submits that in the circumstances of this case the threshold is crossed.  In essence, his submission is that Judge Moala made significant factual and legal errors in sentencing Mr Chand.

[8]      First, the Judge found that there was no provocation to take into account in determining the sentence.   Mr Chand’s case was that he only attacked his wife because of her sexual infidelity and the circumstances in which he caught his wife and her lover at the time.  Provocation was a major factor.

[9]      Second, the Judge found that there was premeditation.  Mr Chand attacked his wife with a stick.  His case was that the stick was a branch that happened to be at the scene of the assault.  The wife gave evidence that it was a stick she recognised from their home.  Whatever the truth of that, the result of the attack for Mrs Chand was a fracture to her leg, two lacerations to the top of her head, major swelling and bruising to her face and neck, bruising to her hand, a perforated eardrum and damage to her hearing.   Mr Wintour submits that the Judge’s finding of premeditation is unsupportable.

[10]     Mr Wintour’s stated aim is to convince the Court on appeal that the final sentence of 27 months’ imprisonment should be at least reduced by three months to bring  it  within  the  range  where  home  detention  could  be  imposed.    Although Mr Wintour does not try to have me decide the merits of the appeal, and of course that is not my job, he does point to Mr Chand’s personal circumstances as making him a good candidate for home detention.  He is a first offender, a mature man, he has indicated (within cultural constraints) some remorse, and he has the care of the

children of the marriage.

3      Hosking v R [2012] NZCA 263 at [5].

4      Mayer v R [2014] NZCA 216 at [11].

5      O’Sullivan v R [2014] NZHC 143 at [9].

Decision

[11]     I am afraid that I am left with the constraints of s 14.

[12]     On the bare facts of the case, I do not see a prima facie situation which would lead me to think that Judge Moala was in error in choosing her starting point and her end point.  I note that Mr Wintour seeks to persuade the Court to hear fresh evidence, and that might make a difference.  But it is not something that I can take into account here.

[13]     I also note that a large part of the appeal is against findings of fact by the trial

Judge. That is a difficult task for any appellant.

[14]     I also take into account that if the appeal is to be heard in three or four months then that is not out of the way, and if Mr Wintour were to succeed, and eventually there was a sentence of home detention imposed, then time served would be credited against it.

[15]     In these circumstances, the appeal is dismissed.

Brewer J