Chaudhary v Police

[2021] NZHC 898

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000030

[2021] NZHC 898

UNDER

Criminal Procedure Act 2011

BETWEEN

ROHIT CHAUDHARY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	27 April 2021
Appearances:	C Anyon-Peters for Appellant S Kim for Respondent
Judgment:	27 April 2021

ORAL JUDGMENT OF VENNING J

Solicitors:           North Shore Public Defendant, Auckland

Meredith Connell, Auckland

CHAUDHARY v NEW ZEALAND POLICE [2021] NZHC 898 [27 April 2021]

[1]    Rohit Chaudhary pleaded guilty to one charge of assault on a person in a family relationship. Judge A M Manuel declined his application for a discharge without conviction and instead imposed a sentence that he was to come up for sentence if called upon within the next 12 months.1 Mr Chaudhary appeals against the decision to decline his application for a discharge without conviction.

[2]    The victim and Mr Chaudhary had been married for six years and had two children. Just after 6.00 pm on 19 February 2020 Mr Chaudhary returned home from work. He apparently became angry following a disagreement about his proposal to take his son to India to see his mother and slapped the left side of the victim’s face using an open hand. He then dragged the victim by her hair across the bedroom yelling at her to leave the address. The victim left the address and ran to a neighbouring address and called the Police.

[3]    As a result of the assault on her the victim received a bruise to her lower back and suffered some redness and a slight swelling to her face as a result of the slap.

[4]    In dismissing the application for a discharge without conviction Judge Manuel assessed the gravity of the offending as moderate. She also assessed the consequences of a conviction on his possible future employment as moderate. She then concluded that Mr Chaudhary had failed to establish the consequences outweighed the gravity of the offending. She considered the gravity and consequences to be proportionate rather than out of all proportion. For that reason, the Judge dismissed his application for discharge.

[5]    In support of the appeal Ms Kim submits that the Judge erred in her assessment of the gravity of the offending by overstating the gravity of the offence itself and placing insufficient weight on the rehabilitative steps Mr Chaudhary had taken and the remorse he had shown since the offending. Counsel referred to the Court of Appeal judgments of Z v R and Mathieson v Police2 in particular, to support the submission. Counsel submitted that if the Judge had taken account of Mr Chaudhary’s rehabilitative efforts and remorse, then she must have initially categorised the

1      New Zealand Police v Chaudhary [2020] NZDC 27372.

2      Z v R [2012] NZCA 599; and Mathieson v Police [2019] NZCA 406.

offending as serious to have reached the view it was moderate after taking account of Mr Chaudhary’s rehabilitative efforts. She submitted it was not serious offending.

[6]    An appeal against a refusal to discharge without conviction is an appeal against both conviction and sentence. It is for the appellate Court to make its own assessment of whether the criteria for discharge without conviction are met.3

[7]    Section 107 of the Sentencing Act 2002 provides guidance for the application of a discharge without conviction:

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.

[8]    The Court of Appeal has also approved the following approach to applications for discharge without conviction:

(a)first, assess the gravity of the offending. This involves consideration of the seriousness of the actual offending, but also includes any aggravating and mitigating factors that apply to the offender;

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

(c)finally, apply the statutory test of whether those consequences are out of all proportion to the assessed gravity of the offending.

[9]    In the case of Mathieson relied on by the appellant Mr Mathieson and the victim had been in a relationship for three years.4 They had an argument over an alleged infidelity. Mr Mathieson grabbed the victim by the jaw with both hands. He desisted but then shortly after as the argument continued repeated the gesture. He also threatened to kill the victim. The victim suffered a sore head and neck with visible bruising to the front of her neck under her chin.

3      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].

4      Mathieson v Police, above n 2.

[10]   Mr Mathieson’s charges were referred to the Family Violence Court. He ultimately pleaded guilty to the charges of male assaults female and threatening to kill. By the time he had entered the guilty pleas Mr Mathieson had commenced a Community, Alcohol and Drug Services programme and had taken steps to be enrolled in a Stop Violence programme. Following his guilty plea he had case review and monitoring appearances on further occasions. On each occasion the feedback was positive. Nevertheless, the District Court Judge assessed the actual offending to be moderately serious and did not appear to make an adjustment to the initial assessment of moderately serious for Mr Mathieson’s rehabilitative efforts. The Court of Appeal ultimately allowed a second appeal and noted there were a number of relevant mitigating factors that applied to Mr Mathieson:

(a)at the time of sentencing he was a 40 year old who only had one previous conviction for careless driving when he was 19;

(b)he had been in constant employment all his adult life;

(c)he had completed courses addressing the causes of his offending and appeared to display considerable insight into it;

(d)he was remorseful and offered to participate in restorative justice so he could apologise directly; and

(e)the impetus for undertaking rehabilitative courses came from him before any formal engagement with the Court.

[11]   The Court of Appeal concluded in his case that the District Court Judge had failed to apply the correct approach in her assessment of the overall gravity of the offending by failing to take into account the very positive mitigating factors. If the Court had done that the correct conclusion would have been that the gravity of the offending was of low seriousness.

[12]   While of course each case is different there are a number of similar features in the present case. The offending in the present case was confined to one brief instance

with no permanent physical effect on the victim. Although counsel, Ms Anyon-Peters has referred to previous domestic call-outs there are no previous convictions for this type of offending by Mr Chaudhary. Mr Chaudhary was 28 at the time of the offending. His only previous conviction was for careless use of a motor vehicle. Mr Chaudhary had entered a guilty plea at a relatively early stage of the case review process. He was genuinely remorseful for his actions and had attended a successful restorative justice conference where he was supported by the victim, his wife. At that conference the victim expressed her forgiveness and the parties have reconciled. Mr Chaudhary also successfully completed a 20 week Living Without Violence programme and 100 hours of voluntary community work. As noted, the victim now supports Mr Chaudhary’s application.

[13]   While Judge Manuel suggested that in assessing the offending as moderate she had considered mitigating factors, I agree with Ms Kim’s submission that if that was so, then she must have assessed the initial offending as high, given the number of mitigating factors required a significant reduction for the purposes of the exercise, and the Judge had concluded that overall the offending was moderately serious. As noted, the offending was not of such high seriousness. At most, without taking account of mitigating factors, the offending itself might be described as moderate but when the mitigating factors are taken into account I agree with counsel’s submission that the gravity of the offending must be regarded as between moderate and of low seriousness.

[14]   I then turn to the assessment of the consequences of conviction. The Judge had accepted there was a real and appreciable risk a conviction may make it more difficult for Mr Chaudhary to obtain a job and assessed the consequences to his future employment as moderate. Ms Kim seeks to rely on that aspect of the Judge’s sentence. However, as noted, this Court is entitled to review that aspect as well in order to determine if the consequences are out of all proportion.

[15]   Mr Chaudhary’s case before the District Court was that he would find it difficult to find employment, to travel overseas, to apply for a mortgage, loan or financial assistance. I agree with Judge Manuel’s assessment that those last matters were aspirational but speculative and the real focus was on the risk a conviction might affect his employment.

[16]   At the time of the offending Mr Chaudhary was working in a food outlet. He has qualifications in cookery to a Level 5 Diploma. After the offending, but before he had been dealt with by the Court, he gave up that job to travel to India. He now says that a conviction will affect the prospect of him obtaining employment in the hospitality industry. There is however no evidence in relation to that, apart from his statement.

[17]   Mr Chaudhary has also said that he had been trying to become an owner-driver for two years (from December 2018) and that he had been interviewed for an owner/driver role with New Zealand Couriers but when he told them of the impending Court case his application was declined. There is however no independent evidence that that was the basis for their decision or any written material to that effect. Mr Chaudhary provided a job description for the role but no letter of declinature or anything of that kind. The job description refers to the need for a current and “clean” licence, (whatever that might mean), and a D licence, which it does not appear Mr Chaudhary has. Notably Mr Chaudhary does not say whether he disclosed his conviction for careless use to them and if so, what the reaction to that was. Given Mr Chaudhary had that relatively recent conviction from September 2018 for careless use it is likely, as the Judge observed, that that conviction would have been a more relevant consideration.

[18]   Given the type of employment opportunities that Mr Chaudhary is likely to pursue, I consider the proper assessment of the consequences to Mr Chaudhary of a conviction to be between low and moderate. A relevant factor I would expect an employer to take into account and consider would be the sentence in this case, which puts the offending in context.

[19]   In the circumstances I am not satisfied that it can be said that the consequences of conviction are out of all proportion to the gravity of the offence in this case.

Result

[20]   For those reasons, which are slightly different to those of the District Court Judge, I have come to the same conclusion that a discharge without conviction is not warranted in this case. The appeal is dismissed.

Venning J