Chandra v The King - [2023] NZCA 600

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA572/2022
[2023] NZCA 600

BETWEEN	DEERAJ THIRESH CHANDRA Appellant
AND	THE KING Respondent

Hearing:	30 October 2023
Court:	Miller, Brewer and Osborne JJ
Counsel:	B Castelino for Appellant MRL Davie for Respondent
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.

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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…

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 Chandra v The King

Details

AGLC: Chandra v The King [2023] NZCA 600
Case: [2023] NZCA 600
Decision Date: 28 November 2023 at 10.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against conviction and sentence by Deeraj Chandra, who was convicted of two charges of male assaults female and one charge of strangulation. The appeal against conviction was dismissed, while the appeal against sentence was allowed to the extent of correcting a calculation error in the District Court. Chandra was sentenced to two years' imprisonment for the strangulation charge and concurrent sentences of 12 months' imprisonment on each male assaults female charge.

Chandra appealed against his conviction, claiming a miscarriage of justice had occurred due to trial counsel's failure to properly advise him on giving evidence at his trial. The court found that Chandra's decision not to give evidence and to call his sister as his single witness was fully informed through explanations by his counsel, Mr. Kashyap. The court preferred Mr. Kashyap's evidence over Chandra's and found that Chandra's decision not to give evidence proved well-founded, and there was no miscarriage of justice in the trial.

Chandra also appealed against his sentence, arguing that the trial judge had given him insufficient discounts for personal factors. The court found that a modest discount was justifiable for the totality of Chandra's personal mitigating factors. However, the court concluded that this was not an appropriate case for a community-based sentence due to the serious nature of the strangulation charge and the purposes of denunciation, deterrence, and community protection.

The court corrected the calculation error in the District Court, resulting in a sentence of two years' imprisonment for the strangulation charge instead of two years and one month's imprisonment. Chandra must surrender himself to Mount Eden Prison on Friday, 1 December 2023, at 10.00 am to resume serving his sentence.

Orders