Chandra v The King
[2023] NZCA 600
•28 November 2023 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA572/2022 [2023] NZCA 600 |
| BETWEEN | DEERAJ THIRESH CHANDRA |
| AND | THE KING |
| Hearing: | 30 October 2023 |
Court: | Miller, Brewer and Osborne JJ |
Counsel: | B Castelino for Appellant |
Judgment: | 28 November 2023 at 10.00 am |
JUDGMENT OF THE COURT
A Leave to adduce the further evidence discussed at [48] is declined.
B The appeal against conviction is dismissed.
CThe appeal against sentence is allowed to the extent of correcting the calculation error made in the District Court. On the strangulation conviction we substitute a sentence of two years’ imprisonment for the sentence of two years and one month’s imprisonment.
DMr Chandra must surrender himself to Mount Eden Prison on Friday, 1 December 2023 at 10.00 am to resume serving his sentence.
____________________________________________________________________
REASONS OF THE COURT
(Given by Osborne J)
Introduction
Following a trial by jury, the appellant, Deeraj Chandra, was convicted of two charges of male assaults female[1] and one charge of strangulation.[2] He was sentenced to two years and one month’s imprisonment on the strangulation charge, with concurrent sentences of 12 months’ imprisonment on each of the male assaults female charges.[3]
[1]Crimes Act 1961, s 194(b); maximum penalty two years’ imprisonment.
[2]Section 189A(b); maximum penalty seven years’ imprisonment.
[3]R v Chandra [2022] NZDC 18792 [sentencing judgment] at [26].
Mr Chandra appeals against his convictions, claiming a miscarriage of justice has occurred, on the following grounds:
(a)trial counsel failed to properly advise him to give evidence at his trial;
(b)his election not to give evidence and not to call his mother to give evidence was not properly informed because trial counsel did not address the potential benefits and risks associated with his giving evidence; and
(c)the election, following advice not to give evidence, altered the final result against him and made the trial unfair.
Mr Chandra appeals against his sentence on the strangulation charge. He argues the trial Judge gave him insufficient discounts for personal factors and that, with appropriate discounts, the end sentence would have been “within 24 months”, ensuring that he could avail himself of a community-based sentence.
The Crown opposes both the conviction and the sentence appeals.
Background
Mr Chandra and the complainant were husband and wife at the time of the offending in 2020. They resided together with their children in their home in Pōkeno. Mr Chandra’s parents and his sister also resided there.
In early-2020, tensions arose between the couple when the complainant disclosed to Mr Chandra that she had been eating beef and pork. The complainant had earlier in the relationship adopted Hinduism, Mr Chandra’s religion. In February 2020, the appellant had a lawyer prepare a deed of family arrangement — the complainant undertook that, if she started consuming beef or pork, she would have to leave the house, have access to the children in weekends (or as mutually agreed between the parties) and continue to pay her share of outgoings on the house and the children’s living expenses. It appears that the existence of this deed was not known to the prosecution.
Between 25 March and 27 April 2020, Auckland was in a COVID-19 Alert Level 4 “lockdown”. The majority of Mr Chandra’s charges relate to this period.
Mr Chandra was charged with six offences. By charge 1, a representative charge of male assaults female, it was alleged Mr Chandra, in their home, variously punched, slapped or struck the complainant with an open hand.
Charges 2 and 3, respectively male assaults female and strangulation, were also alleged to have occurred in the home. It was alleged Mr Chandra became angry and punched the complainant’s side before pushing her to the ground. Mr Chandra is then said to have got on top of the complainant, placing his knees either side of her. He then put his hands around her neck and pressed his thumbs into her windpipe, preventing her from being able to breathe. The complainant lost control of her limbs and began to shake, the defendant only stopping when the couple’s young son began to cry.
Charges 4 and 5 were of poisoning, again allegedly occurring within the home. Charge 4 related to an incident when the complainant was changing her son’s nappy. It was alleged Mr Chandra told the complainant “if you really regret eating beef and pork you will eat his poo” whereupon the complainant (fearful of her own and her son’s safety) picked up a piece of her son’s faeces and ate it. Mr Chandra then had the complainant repeat that action.
Charge 5 allegedly followed a further discussion in which Mr Chandra brought up the fact the complainant had been eating beef and pork. It was alleged Mr Chandra told the complainant that, if she really loved him, she would eat some rat poison (which was in the house for the control of mice). The complainant complied and ate some of the rat poison. Before she could swallow the poison, the defendant told her to spit it out. He then put his fingers in her mouth to remove the poison.
By charge 6, the third male assaults female charge, it was alleged that later in the year (August or September 2020), when the couple were driving in South Auckland with their children, Mr Chandra, after again lecturing the complainant about eating beef and pork, became angry and punched her twice to the face using a closed fist.
Mr Chandra was spoken to by the police in September 2020 and declined to make a statement.
Mr Chandra was represented throughout the proceedings that followed by Aaron Kashyap as counsel. Mr Chandra’s first trial (April 2021) was a mistrial. His second trial (August 2021) was not completed because COVID-19 restrictions intervened. His third trial commenced on 20 June 2022 before Judge Yelavich and a jury. At the trial Mr Chandra elected not to give evidence himself but called his sister as a witness. Charge 2 was dismissed at the conclusion of the Crown case. The jury found Mr Chandra not guilty on charges 4 and 5. Mr Chandra was found guilty on charges 1, 3 and 6.
The appeal against conviction
This appeal is brought pursuant to s 229 of the Criminal Procedure Act 2011. The Court must allow the appeal if there has been a miscarriage of justice for any reason.[4] A “miscarriage of justice” means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.[5]
Allegations against counsel
[4]Criminal Procedure Act 2011, s 232(2).
[5]Section 232(4).
Mr Chandra does not allege trial counsel failed to follow specific instructions. Had Mr Chandra specifically instructed counsel to call him to give evidence (and that had not been done), the failure to follow those instructions on the fundamental decision as to election would generally have given rise to a miscarriage of justice.[6]
[6]Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65].
Mr Chandra’s complaint here is that he was unable to make an informed decision about his election because trial counsel failed to properly advise him and his parents on giving evidence.
The Supreme Court in R v Sungsuwan considered the principles to be applied when determining trial counsel competence appeals.[7] Gault J, delivering the judgment of himself, Keith and Blanchard JJ, said (in relation to situations where a defendant has adopted the strategic or tactical advice of counsel in the presentation of their defence):
[66] There will be cases in which particular acts or omissions of counsel may in retrospect be seen to have possibly affected the outcome but they were deliberately judged at the time to be in the interests of the accused. In some cases the accused will have agreed or acquiesced – only to complain after conviction. Where the conduct was reasonable in the circumstances the client will not generally succeed in asserting miscarriage of justice so as to gain the chance of defending on a different basis on a new trial. Normally an appeal would not be allowed simply because of a judgment made by trial counsel which could well be made by another competent counsel in the course of a new trial.
[7]R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730.
As this Court observed in R v Scurrah, the judgments in Sungsuwan as a general proposition indicate the appellate court’s focus should be on the trial process and its outcome rather than on the characterisation of counsel’s conduct.[8]
Evidence relating to the rat poison incident
[8]R v Scurrah CA159/06, 12 September 2006, at [13].
Through the disclosure process, Mr Chandra and Mr Kashyap were aware the complainant had stated she had gone to her medical centre to see a doctor the day after the rat poison incident. She related seeing one of the doctors and telling the doctor a story that Mr Chandra had told her — that she had been eating a bag of sweets, dropped them and then picked them up and taken a bite without realising she had picked up a rat poison tablet. She said the doctor told her that she would have to have ingested quite a lot to affect her in any way and that she should simply consume plenty of water.
Mr Chandra and Mr Kashyap were also aware that the medical practice’s records in relation to the complainant’s consultation contained no record of a discussion as to the ingesting of rat poison or treatment for it. At the trial, a doctor from the practice said consumption of quantities of water was not a recommended remedy for rat poison ingestion.
Evidence as to the conduct of Mr Chandra’s defence
On this appeal, evidence was admitted in the form of affidavits of Mr Chandra and Mr Kashyap. Each was cross-examined.
Mr Chandra’s evidence
We summarise Mr Chandra’s evidence. Before the first trial, Mr Kashyap’s initial advice to Mr Chandra was that he, his parents and his sister should give evidence.
Shortly before the trial, there was a meeting between Mr Kashyap and Mr Chandra, his mother and his sister. A friend of Mr Kashyap, a qualified but non‑practising lawyer, also came into the office to discuss strategy. There was a discussion about having the complainant exposed as a liar because of issues in her statement, particularly in relation to the rat poison allegation. There was then a discussion as to calling as a witness Mr Chandra’s sister who has overseas legal qualifications and was likely to be able to handle questions during cross-examination.
In the meantime, Mr Kashyap and Mr Chandra had written up a brief of evidence (initially two pages and later much more detailed). It included Mr Chandra’s explanation of why he had the complainant sign the deed of family arrangement. The statement contains a denial of any assaults and speculates that the complainant may have been motivated by a desire to end the marriage, “grossly influenced” by friends and colleagues. The statement describes the rat poison incident as having occurred after the complainant said to Mr Chandra that she could prove her love by eating rat poison and then started to do so. The statement records that at that point Mr Chandra “made her to forcefully spit out the rat poison”.
Mr Chandra initially wished to give evidence on his own behalf. Mr Kashyap discussed with him that he would give too many details and would open himself to cross-examination. The advice given by Mr Kashyap (and his colleague) in the course of the meeting was that only Mr Chandra’s sister should be called as a witness in his defence.
At the first trial, Mr Kashyap did not ask questions on all the allegations. At the close of the Crown case Mr Chandra elected not to give evidence and called his sister as his only witness.
Mr Chandra noted that, again at the second trial, Mr Kashyap did not question the complainant on all the allegations, a matter pointed out by the trial Judge. Only his sister was to be called to give evidence for him, which did not occur because the trial was aborted.
By the time the third trial was approaching, Mr Chandra knew that “it was not important for [him] to give evidence” in terms of the advice he had already received. Mr Chandra noted that Mr Kashyap again asked very limited questions of all Crown witnesses which led Judge Yelavich to arrange for the complainant to be recalled for Mr Kashyap to specifically put the defence case (that Mr Chandra had not performed each of the acts alleged by the Crown).
Mr Chandra referred to a handwritten note he signed at the conclusion of the Crown case on 21 June 2022 as recording Mr Kashyap’s advice that it was not necessary that he give evidence, that note stating:
I, Deeraj Chandra confirm that I understand that the Crown has now completed its case. I have not given evidence previously. My lawyer suggests that is not necessary to give evidence. I decide to
givenot give evidence.21 June 2022
Mr Chandra stated that Mr Kashyap never explained to him the pros and cons of not giving evidence. He said he signed his election form because Mr Kashyap suggested that, should he give evidence, he would open himself to “self‑incrimination”.
At this hearing, immediately before he was cross-examined Mr Chandra provided some additional evidence-in-chief. He produced a copy of a text message he said he received from the complainant on 19 March 2020 stating (in reference to a friend of the complainant):
… she noticed the love bite on my neck, she put her finger on it, I moved away said the chant u told me.
Mr Chandra stated that he showed the message to Mr Kashyap because it was relevant to the strangulation charge.
Mr Chandra also referred to GPS tracking evidence that he said he would have produced had he been called as a witness. In relation to charge 6 (the assault in the car) he said that a GPS tracer installed on the car would have shown if there was a “harsh steering control”, which would have contradicted evidence given by the complainant that when she was hit she swerved the car. Mr Chandra said he told Mr Kashyap about the GPS evidence.
In cross-examination, Mr Chandra accepted that he knew:
(a)the Crown had to prove the charges against him beyond reasonable doubt;
(b)if the jury was not sure about the complainant’s evidence, they would acquit him;
(c)the defence strategy was to cast doubt on the complainant’s evidence by questioning her, including in relation to the medical records; and
(d)Mr Kashyap could question the complainant without Mr Chandra giving evidence.
Mr Chandra confirmed that before each of the three trials, he was aware of his right to give evidence but that, on advice, he did not want to give evidence.
In cross-examination Mr Chandra accepted that Mr Kashyap had told him there could be advantages to giving evidence, including that the jury might believe him which would mean that he would be found not guilty. Mr Chandra accepted that Mr Kashyap had also talked about disadvantages of giving evidence including that he might have said something that he should not have said. Later in cross-examination, however, Mr Chandra said he did want to give evidence because he “had all this proof”. He stated that he would have referred to the deed in his evidence. He did not believe the deed portrayed him as controlling in his relationship with his wife.
There was then this exchange in cross-examination about the rat poison incident:
Q. You told Mr Kashyap that your wife did ingest rat poison?
A. No. [The complainant] never ate the rat poison. She ate a colouring crayon.
Mr Kashyap’s evidence
Mr Kashyap provided an affirmation in which he discussed his instructions from Mr Chandra and his conduct of the trials. We summarise his evidence.
Mr Kashyap referred to lengthy discussions with Mr Chandra about his trial strategies. He initially was of the view that Mr Chandra should give evidence but came to the view that Mr Chandra would struggle to answer questions in cross‑examination, including straightforward questions about the rat poison incident. Mr Chandra also came to the same view, that he might say something compromising in cross‑examination. Accordingly, Mr Kashyap asserts that Mr Chandra did not want to give evidence.
Mr Chandra’s father was ill and Mr Chandra was not comfortable about his giving evidence. Mr Chandra’s mother did not want to give evidence.
Mr Kashyap referred also to a list of five advantages and six disadvantages he had written on the front page of Mr Chandra’s eight-page brief as finished ahead of the third trial. Before Mr Chandra, on 21 June 2022, signed the note of his election (above at [30]), Mr Kashyap discussed the “pros and cons” of giving evidence. These included that Mr Chandra would have to avoid talking about the rat poison incident as he could not lie and claim he was unaware of it. Mr Kashyap explained to Mr Chandra that he did not have to give evidence — he could rely on what was before the Court. He could give evidence if he wanted but it was for the Crown to prove the case against him.
Mr Kashyap believed Mr Chandra was happy with the way the case was being run. He had a lot of time to consider his position and was adamant he did not wish to give evidence.
Mr Kashyap said he had never seen the “love bite” text message produced by Mr Chandra at this hearing. He also observed that the text page related to a love bite seen in February 2020, whereas the complainant referred to the strangulation as having occurred during the COVID-19 lockdown — that is during March or April 2020.
Mr Kashyap also said Mr Chandra never raised the matter of GPS records referred to by Mr Chandra in his oral evidence at this hearing.
Mr Castelino, for Mr Chandra, cross-examined Mr Kashyap about a witness statement made after the first trial by the woman who apparently is the person referred to in the “love bite” text from the complainant in February 2020. The witness recorded she had seen bruising on the complainant between 15 and 23 March 2020 and was told by the complainant a bruise on her neck was a hickey. Mr Castelino asked Mr Kashyap if he had disclosed the statement to Mr Chandra. Mr Kashyap stated he believed so but added he would need to check his emails as he was not aware he was going to be asked about this issue.
Mr Castelino also cross-examined Mr Kashyap about a draft notice of appeal he prepared, following Mr Chandra’s convictions, for consideration by counsel who was to be freshly instructed.
Text printout/GPS evidence/witness statement
Mr Castelino sought to produce additional documents in relation to three topics (the text printout, GPS evidence and witness statement) in the course of Mr Chandra’s oral evidence and the cross-examination of Mr Kashyap. The Crown was not previously notified of Mr Chandra’s claims about these documents, which denied Mr Kashyap the opportunity to search his records and respond in an informed manner. The Court will not allow counsel error appeals to become trials by ambush. We decline to admit these three documents. We add that we would have found Mr Kashyap’s answers, to the extent he could provide them, indicated the documents raised no issues as to the quality of Mr Chandra’s representation. For the reasons that follow, we prefer Mr Kashyap’s evidence on these matters.
Our assessment of the evidence
We do not find Mr Chandra to be a reliable witness. On the key issue of the rat poison incident — on which his defence strategy through the three trials was focussed — he had consistently instructed Mr Kashyap and recorded in his developing draft briefs that he was aware of an incident in which the complainant ate rat poison. His explanation was that he then made her spit it out. Mr Kashyap’s contemporaneous note of his early meeting with Mr Chandra recorded:
Not a good idea for him to give evidence as some aspects of rat poison did happen [and] he may have asked her to go to Doctor.
The denial by Mr Chandra, in cross-examination, that the complainant ever ate rat poison, and his assertion that she ate a colouring crayon, clearly indicates Mr Chandra has been dishonest in relating matters central to his case. Either he was for more than a year misleading Mr Kashyap as to being present during the rat poison incident (a matter on which he would not have had reason to mislead his lawyer) or he was lying in court on this appeal (the most cogent conclusion).
By contrast, Mr Kashyap gave his evidence in a straightforward manner. He stated when he was unsure or had no memory of a particular matter. His evidence as to discussions with Mr Chandra and Mr Chandra’s family was consistent with the contemporaneous notes he made.
We prefer the evidence of Mr Kashyap to that of Mr Chandra on all material matters, including in relation to Mr Chandra’s initial wish to give evidence and to call family members as witnesses, the repeated discussion of advantages and disadvantages of such evidence, Mr Chandra’s firm decision not to give evidence or to call either his mother or father, and finally Mr Chandra’s decision to call only his sister.
Discussion
Having reached these conclusions on the reliability of Mr Kashyap’s evidence and the unreliability of Mr Chandra’s evidence, we find:
(a)Mr Chandra made and sustained through three trials a strategic decision to focus his defence on exposing the complainant as unreliable through cross-examination of the complainant based on a failure to report anything in relation to the alleged rat poison incident to her doctor the day after the incident.
(b)Mr Chandra’s decision not to give evidence himself and to call his sister as his single witness was fully informed through Mr Kashyap’s explanations to him in relation to the way in which criminal charges are proved (or not), his right to give and call evidence, and the advantages and disadvantages of giving or calling evidence.
(c)Particular disadvantages (correctly identified by both Mr Kashyap and Mr Chandra) were that it appeared from their interchanges that Mr Chandra was unlikely to handle cross-examination well, especially in relation to the rat poison incident (of which, without lying, he would have to have admitted some knowledge and involvement) and in relation to the strength of Mr Chandra’s feelings about the complainant’s eating of beef and pork (which had led him to procure the preparation and execution of the deed, with its draconian terms).
(d)As established by Mr Chandra’s evidence before us, the decision that he should not give evidence because of the likelihood of a performance that would undermine his own case has proved well-founded. Having not given evidence at his trial, he secured acquittals on two of the charges (serious in themselves) when giving evidence including in relation to the rat poison incident (if given in accordance with his brief of evidence) would have undone the benefit of doubts created in relation to the rat poison incident and the faeces incident through cross‑examination of the complainant and questions of the doctor whom she had consulted.
For these reasons, a miscarriage of justice did not occur in the third trial. There was no error, let alone an error affecting the outcome and safety of the three convictions. Mr Kashyap followed his client’s instructions. Mr Kashyap presented Mr Chandra’s case, as instructed, on the basis that Mr Chandra had not committed any of the assaults or other offences alleged by the complainant. Mr Kashyap, as instructed, called Mr Chandra’s sister as a witness to speak to the lack of visual or other evidence of any assaults in their home. Mr Kashyap did not err in his assessment of the potential advantages and disadvantages of Mr Chandra giving evidence or in his explanation of those to Mr Chandra.
The appeal against sentence
Mr Chandra was convicted on two charges of male assaults female and one charge of strangulation.
Judge Yelavich adopted a starting point on the strangulation offence of two years and three months’ imprisonment.[9] This had regard to the decision of this Court in Shramka v R,[10] and to four aggravating features of the offending:
(a)the victim’s vulnerability;[11]
(b)aggravated violence;[12]
(c)enduring harm to the victim;[13] and
(d)the presence of the children.[14]
[9]Sentencing judgment, above n 3, at [19].
[10]At [10] and [18], citing Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348.
[11]Sentencing judgment, above n 3, at [12].
[12]At [13].
[13]At [14].
[14]At [15].
The Judge calculated on the assault charges a total uplift of four months, leading to an overall starting point of two years and seven months’ imprisonment.[15]
[15]At [20].
Mr Chandra, at 38 years of age, had no previous convictions. For this, the Judge gave a 10 per cent discount.[16]
[16]At [22].
Mr Chandra had engaged in rehabilitation — reference was made to 100 hours of programmes including in a domestic violence group programme. The Judge noted comments of the writer of the pre-sentence report that Mr Chandra did not accept responsibility or any fault in terms of the violence or the breakdown of the couple’s relationship.[17] The Judge nevertheless allowed a further 10 per cent discount (described by her as “very generous”) for this factor.[18]
[17]At [23].
[18]At [24].
The Judge then calculated, on the basis of a 20 per cent discount, an adjusted end point of 25.5 months’ imprisonment. She rounded that down to 25 months’ imprisonment.[19]
Submissions
[19]At [25].
Counsel both recognised the Judge’s overall starting point of 31 months’ imprisonment was appropriate.
Mr Castelino submitted the end sentence was manifestly excessive both in terms of the period of imprisonment and then by not affording Mr Chandra the opportunity to seek a community-based sentence. He recognised a 10 per cent discount for Mr Chandra’s good record was appropriate. He submitted the Judge erred in restricting the other discount to 10 per cent. He submitted a discount of up to 30 per cent was justified because:
(a)Mr Chandra had not only undertaken a family violence programme but had also undertaken some 100 hours of volunteer work for Red Cross;
(b)Mr Chandra is (as a self-employed auto-electrician) the sole breadwinner for himself and his immediate family and has a mortgage to service;
(c)imprisonment would disconnect him from his two children, with whom he has had approved contact arrangements; and
(d)while on lengthy bail Mr Chandra committed no breaches.
Mr Davie, for the Crown, submitted the end sentence was appropriate both as a sentence of imprisonment and in terms of its length. He particularly noted the seriousness of the lead charge and the lack of remorse. He observed that, as the Judge pointed out, the efficacy of the rehabilitation steps taken by Mr Chandra must be in doubt.
Sentence appeals
Mr Chandra’s sentence appeal comes before this Court under s 247(1)(d) of the Criminal Procedure Act. Appeals against sentence are allowed as of right by s 244 and must be determined in accordance with s 250. An appeal against sentence may be allowed only if the appellate court is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.[20] As this Court noted in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.[21] It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.[22]
[20]Criminal Procedure Act 2011, ss 250(2) and 250(3).
[21]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[22]Ripia v R [2011] NZCA 101 at [15].
Mr Chandra bears the onus of persuading this Court to reach a different conclusion to Judge Yelavich as to the appropriate sentence.[23]
Discussion
[23]Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].
The Judge correctly identified from the information before the Court that Mr Chandra had not accepted any responsibility for the offending of which he had been convicted. Mr Chandra is recorded in the pre-sentence report as denying any physical abuse on his part towards the victim and maintaining the relationship broke down due to a “lack of respect on [the complainant’s] part”. While the programme he had attended had a focus on assisting with anger management, it is clear Mr Chandra’s engagement with the programme had proceeded on the false premise that he was innocent of the charges on which he was convicted and had not acted violently as proved. The comments of the author, John Thrush, appeared to adopt Mr Chandra’s account: the convictions were based on the complainant’s “word of mouth”; her account of being strangled was “far from reality”; she had not engaged in professional interventions which might have led her to reconcile with him; and Mr Chandra had considered asking that she undergo psychological assessment which might explain her “unpredictable behaviour”.
In these circumstances the Judge would have been justified in not allowing any discount for steps taken towards and prospects of rehabilitation. That said, when the voluntary work undertaken by Mr Chandra is also taken into account, a modest discount was justifiable. In these circumstances we view the total discount of 20 per cent as reasonable, albeit generous, to recognise the totality of Mr Chandra’s personal mitigating factors.
We observe there was a minor mathematical error in the Judge’s calculations — 80 per cent of the starting point figure of 31 is 24.8 (rather than the 25.5 identified by the Judge). Had the Judge rounded down, as was clearly her intention, the end sentence would have become 24 months’ imprisonment. The error is minor but the Court usually corrects such a mathematical error where the error was to the appellant’s disadvantage.[24] We pointed the error out to Mr Castelino and noted that a reduction to two years did not mean the sentence would change form. In that case Mr Chandra would be released on parole at one-half of his sentence rather than being eligible for parole at one-third. Mr Castelino submitted that the sentence ought to be reduced and urged us to substitute a sentence of home detention. We will reduce the sentence accordingly.
[24]Ferris-Bromley v R [2017] NZCA 115 at [15].
Notwithstanding the sentence then becomes one of a short term of imprisonment, it would not meet the purposes of imprisonment to allow the substitution of a community-based sentence. As this Court remarked in Shramka, strangulation is a marker of abusive, coercive behaviour and an important risk factor for a future fatal attack.[25] It engages sentencing purposes of denunciation, deterrence and community protection.[26] That does not preclude a community-based sentence in cases of moderate seriousness such as this. But Mr Chandra’s stance goes far beyond a denial of the offending; he still blames the victim and is seemingly unable to see that there was anything coercive about his relationship with her. In the circumstances, personal deterrence is a significant sentencing consideration. We accept that he has engaged in rehabilitation, which is to be encouraged, but he is a significant distance from the end of that process.
[25]Shramka v R, above n 10, at [17], citing (11 September 2018) 732 NZPD 6448, and at [20], citing Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016) at [1.3].
[26]Sentencing Act 2002 ss 7(1)(e)–7(1)(g).
Mr Chandra is self-employed as an auto electrician. He says that he supports his elderly parents and has a mortgage to pay. But as Mr Davie submitted, the claim that Mr Chandra’s family will suffer particular hardship calls for evidence and there is no evidence that the family will be unable to remain in the house.[27] It appears that Mr Chandra’s sister also lives there and is employed.
[27]Section 24(2)(d).
We conclude that this is not an appropriate case for a community-based sentence.
Result
Leave to adduce the further evidence discussed at [48] is declined.
The appeal against conviction is dismissed.
The appeal against sentence is allowed to the extent of correcting the calculation error made in the District Court. On the strangulation charge we substitute a sentence of two years’ imprisonment for the sentence of two years and one month’s imprisonment.
Mr Chandra must surrender himself to Mount Eden Prison on Friday, 1 December 2023 at 10.00 am to resume serving his sentence.
Solicitors:
Castlefinn Law Ltd, Auckland for Appellant
Crown Law Office, Wellington for Respondent
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