Chandra v Police

[2016] NZHC 2959

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000309 [2016] NZHC 2959

BETWEEN

VIXSHAY SHAIESH CHANDRA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	6 December 2016
Counsel:	J Harder for Appellant D M A Wiseman for Respondent
Judgment:	8 December 2016

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 8 December 2016 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

J Harder, Auckland.

Meredith Connell, Auckland.

CHANDRA v POLICE [2016] NZHC 2959 [8 December 2016]

The issue

[1]      The  appellant  was  convicted  following  trial  of  a  charge  of  assault.    He instigated a violent and unprovoked attack on the victim.  After trial, the appellant sought to be discharged without conviction.  Judge Thomas dismissed the application and sentenced the appellant to 80 hours of community work and $150 reparation. The appellant contends the Judge was wrong not to discharge him on the basis he overstated the gravity of the offending and understated the consequences of conviction.  The issue is narrower still.  Is the appellant’s likely inability to travel to Canada for a period of at least five years out of all proportion to the gravity of the offending?

Background

[2]      On 2 April 2015 the appellant and two associates were in the Auckland central business district.  They came across the victim, X, who was standing with his girlfriend at an ATM. As with the appellant, X is a university student.  The appellant approached X.  He challenged X verbally.  X told the appellant to keep walking.  He did not.   Instead, the appellant pushed, shoved and then barged the victim.   The appellant’s associates then attacked X too.  They punched X to the head until and after he was knocked to the ground.   The appellant, however, did not throw any punches.  Members of the public intervened.

[3]      X sustained a black eye, strained neck, cuts and swelling to his head, and more general soreness.  He was later diagnosed with concussion.

[4]      The  Judge  assessed  the  gravity  of  the  offending  as  moderate.     That conclusion reflected a number of factors: vulnerability on the part of the victim; the appellant’s instigation of the attack; the absence of any punches by the appellant; some rehabilitative steps on his part but no guilty plea; the appellant’s age (he is now

20 years old); and a prior good record.

[5]      The Judge then considered the possible consequences of conviction.   Any impact upon the appellant’s employment prospects was held to be within the usual range of expected consequences from offending of this nature. And in relation to the

possible impairment of international travel, the Judge found there was insufficient evidence of any particular effect.   The Judge concluded the consequences of conviction would not be out of all proportion to the gravity of the offending.

[6]      The Judge was obviously troubled by the appellant’s role in the attack:1

Mr Chandra, you were part of a group of people that very foolishly and stupidly, as Mr Kovacevich says, attacked a person who I shall call A. A was an innocent bystander.   He was standing at a money machine minding his own business in Customs Street.  You and your associates were looking for trouble. You saw an opportunity. You were the one who approached A. You were the one who verbally challenged him.  You were the one who set in motion the activity that resulted in A being assaulted by multiple attackers. That was your plan.  You approached him knowing that he was going to be your victim.

Although at your trial I did not find any of the alleged punches that you threw proven, what I did find proven was that you were the instigator of it all.  The reality is that had you not approached A, A would not have been assaulted.  Had you not started all of this, none of you would be here.  The extent of the physical contact between the two of you was limited.  But your words were what set everything off.  You need to bear the lion’s share of the responsibility for what happened to A.  You were the one who was out there to be the big man.   That was the choice you made but it also is the responsibility that you bear.

[7]      His Honour was also troubled by the appellant’s lack of veracity at trial.  He described the appellant as “evasive, inconsistent and blatantly dishonest”.2     That sentiment was reflected in the Judge’s discharge decision too.3

I am not prepared to recognise, in any way, your acknowledgement of guilt before trial.  You maintained to the police when you were interviewed that you might have pushed him but you did not punch him.  But by the time we got to trial you were denying even intentionally pushing him.   You were denying intentional physical contact of any description.  That was patently at odds with what you had said to the police.  I myself found that you had lied about that in the witness box.  I note in your submissions in support of your application you accept that you did push him.  That of course is effectively an admission of perjury.  So any credit for remorse or acceptance of guilt or acknowledgement simply does not exist here.

1      Police v Chandra [2016] NZDC 17560 at [1]–[2].

2      Police v Chandra [2016] NZDC 8443 at [11].

3      Police v Chandra, above n 1, at [10].

The appellant’s case

[8]      The  appellant  contends  the  Judge  erred  in  assessing  the  gravity  of  the offending as “moderate”.   The thrust of his case, however, is that Judge Thomas placed insufficient weight upon the consequences of conviction, insofar as it would affect the appellant’s ability to travel to Canada, where his extended family lives.

[9]      The appellant seeks leave to admit fresh evidence in relation to this aspect. The evidence comprises an affidavit from an immigration lawyer, Mr Garrett Wong, setting out the consequences of a conviction in relation to possible travel on the appellant’s part.  Mr Wong has consulted an immigration lawyer in Canada.  That lawyer’s opinion is appended as an annexure to Mr Wong’s affidavit.  More about this later.

Analysis

[10]     The relevant provisions are ss 106 and 107 of the Sentencing Act 2002.  They provide:

106 Discharge without conviction

(1)   If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2)   A discharge under this section is deemed to be an acquittal. (3)   A court discharging an offender under this section may—

(a)   make  an  order  for  payment  of  costs  or  the  restitution  of  any property; or

(b)   make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

(i)    loss of, or damage to, property; or

(ii)  emotional harm; or

(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

(c)   make any order that the court is required to make on conviction.

(3A)  Sections 32 to 38A apply, with any necessary modifications, to an order under subsection (3)(b) as they apply to a sentence of reparation.

…

(5)   Despite  subsection  (3)(b), the  court  must  not  order the  payment  of compensation in respect of any consequential loss or damage described in subsection (3)(b)(iii) for which compensation has been, or is to be, paid under the Accident Compensation Act 2001.

…

107 Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[11]     Applicable principle is well-known.4  A Court must: (a)         Identify the gravity of the offence;

(b)      Identify the direct and indirect consequences of a conviction; and

(c)      Determine  whether  the  direct  and  indirect  consequences  of  the conviction would be out of all proportion to the gravity of the offending.

[12]     It is common ground the Judge approached the application this way, albeit on

the appellant’s case, with the errors identified earlier.

Gravity of the offending

[13]     The appellant submits the gravity of the offending was something less than moderate.  On his behalf, Mr Harder invited attention to the appellant’s age and to the fact the appellant’s physical involvement did not extend to any punching of the victim.  He observed, correctly, the appellant had not been convicted as a party to the

punches administered by his associates.

4      See for example, R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

[14]     The  appellant  was  initially  accepted  for  diversion.     Consequently,  he completed  part  of  a  rehabilitative  course  before  Police  changed  their  stance. Mr Harder also referred to the appellant’s previous good character as mitigating the seriousness of the offending, and to his age.

[15]     I am far from satisfied the Judge erred in his assessment of the gravity of the offending.   All of these matters were considered and treated as mitigatory.   This aspect of the appellant’s case is essentially a reheating of points placed before the Judge below.  Nothing new emerges.

[16]     In any event, it is difficult to imagine a different conclusion on this issue. While the points above have force, the appellant was the instigator of what the Judge concluded was unprovoked violence against a vulnerable and defenceless victim. True, he did not punch the victim or specifically encourage or incite that type of violence.  He did, however, commence the assault knowing he had the benefit of the weight of numbers.  And as observed, his violence was unprovoked.  Behaviour of this nature is cowardly.

[17]     I detect no reversible error.

Consequences of the conviction

[18]     The appellant is in his second year of study at AUT.   He is completing a Bachelor of Commerce degree with a major in international business and innovation. I gather he wishes to pursue, as many students do, post-graduate study or perhaps a career abroad.

[19]     Some of the appellant’s extended family lives in Canada.  His grandparents (on his father’s side) live there, as do three sets of aunts, uncles and cousins.  The appellant has no immediate plans to go to Canada, or for that matter, anywhere.  The appeal was brought on the basis a conviction may affect future plans, particularly as the appellant is young and hoping to pursue a business career consistent with his studies.

[20]     Mr Wong’s affidavit addresses the potential consequences of a conviction in relation to international travel, in part by reference to legal advice from a Canadian lawyer.   Mr Wong concludes the appellant may face some uncertainty obtaining entry to visa-free countries where disclosure of a conviction is still required.  But the focus of his affidavit, and the appellant, concerned the appellant’s inability to enter

Canada for at least five years from the date of his conviction.5

[21]     Canadian  law  provides  a  discretion  to  permit  entry  in  the  case  of  an apparently rehabilitated offender after five years.  Processing times could extend that delay.   On the other hand, there is another way the appellant could gain entry to Canada before the expiry of the five-year period—through a temporary resident permit—but these are discretionary.  Doubt attaches to whether that discretion would be exercised in the appellant’s favour; a temporary resident permit requires exceptional circumstances.   And even if it were, a permit of this type allows one entry only (meaning, per permit).

[22]     Mr Wong’s affidavit was not before Judge Thomas.  It is not clear why it was not.   Obviously, the material is not fresh in the orthodox sense.   It is, however, relevant and cogent.  I admit it in the interests of justice over Crown opposition,6 and proceed on the assumption it is unlikely the appellant may travel to Canada for at least five years.

[23]     Mr Harder submits this is a long period of time for a young student, and a consequence not known to the Judge.  I agree.  However, I do not accept this factor, or the related but much attenuated risk of a lesser level of frustrated international travel in the short term, means the consequences of a conviction are out of all proportion to the gravity of the offending.

[24]     As observed, the Judge assessed that as moderate.  I do too.  Moderate is also a fair description of the severity of consequences of the conviction:

5      Mr Wong also noted the appellant could not hold an Asia-Pacific European Business Card for seven years (when his conviction will be purged under the Criminal Records (Clean Slate) Act

2004, assuming of course, the appellant does not commit further offences).

6      R v Bain [2004] 1 NZLR 638 (CA) at [22].

(a)      While the appellant will not be able to travel to Canada for at least five years, other relevant destinations appear to remain open.  So, the hardship he may face as a post-graduate student or budding business person is far removed from the hardship of a (temporary) global travel ban.  Put positively, it is likely the appellant may soon study or work abroad in a number of countries typically associated with opportunity for younger New Zealanders.

(b)The   appellant’s   family   in   Canada   are   extended   family.     The maintenance of a conviction will not act to separate the appellant from his parents, any immediate family members or close friends.  In short, there is no interference with any right to family life.

(c)      The appellant has no immediate travel plans of any kind.  His studies will occupy at least one more year.  And as observed, other relevant destinations appear to remain viable.

[25]     Consequently, the case exhibits symmetry of consequence to offence-gravity. But even if this assessment is infelicitous, the consequences of conviction are plainly not out of all proportion to the gravity of the offending.  The appellant’s desire to travel to Canada is likely to be thwarted for at least five years, but then he did commit an unprovoked assault on another student in less than creditable circumstances.

[26]     Finally, while cases in this are intensely fact-specific, the recent decision of the Court of Appeal in Maraj appears to have been a stronger case for s 106-relief.7

It was declined, and the appeal dismissed.  So too this appeal.

[27]     I thank counsel for the clarity of their written and oral submissions.

……………………………..

Downs J

7      Maraj v Police [2016] NZCA 279.