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…

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 The Queen

Details

AGLC: Chand v The Queen [2017] NZHC 1335
Case: [2017] NZHC 1335
Decision Date: 16 June 2017

CaseChat Overview and Summary

The High Court of New Zealand was called upon to hear an appeal by Radesh Chand against his sentence and the refusal of bail pending the determination of that appeal. Chand had been sentenced to 27 months’ imprisonment by Judge S Moala in the District Court at Papakura, following a guilty plea to causing grievous bodily harm with intent to injure. Chand appealed both his sentence and the denial of bail by Judge Moala, who had refused bail on the grounds that the prospects of success on appeal were not strong enough to warrant release. The key legal issue was whether the appellant had demonstrated that it was in the interests of justice to grant him bail pending the appeal, as required by section 14 of the Bail Act 2000. The appellant's counsel argued that there were significant factual and legal errors in the sentencing process that would likely lead to a reduction in the sentence, thereby justifying bail.

The court considered the high threshold for granting bail to an appellant who has pleaded guilty, as established by previous cases. The court acknowledged the appellant's arguments regarding the trial judge's findings of no provocation and premeditation, but found that these issues were primarily factual and difficult to overturn on appeal. The court also noted that the appeal process might take several months and that any reduced sentence would credit time already served. Ultimately, the court concluded that the appellant had not shown a prima facie case that the trial judge's sentence was in error or that the appeal had very strong prospects of success. Consequently, the appeal was dismissed, and the appellant remained in custody.

The final orders of the court were that the appeal against sentence and the application for bail pending appeal were both dismissed. The appellant would continue to serve his sentence of 27 months’ imprisonment.

Orders