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.

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.

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Details

Case: [2021] NZHC 898
Decision Date: 27 April 2021

CaseChat Overview and Summary

Rohit Chaudhary appealed against the decision of Judge A M Manuel to decline his application for a discharge without conviction following his guilty plea to a charge of assault on his spouse. The couple had been married for six years and had two children. Chaudhary slapped his wife and dragged her by her hair across the bedroom after a disagreement about his proposal to take their son to India. The victim left the address and called the police. The victim suffered bruising to her lower back and redness and slight swelling to her face as a result of the assault. Judge Manuel assessed the gravity of the offending as moderate and the consequences of a conviction on Chaudhary's possible future employment as moderate. The judge concluded that Chaudhary had failed to establish the consequences outweighed the gravity of the offending. Chaudhary appealed against the decision to decline his application for a discharge without conviction. The Court of Appeal considered the gravity of the offending and the consequences of conviction in relation to Chaudhary's future employment. The court noted that the offending was confined to one brief instance with no permanent physical effect on the victim. Chaudhary had entered a guilty plea at an early stage of the case review process and had taken rehabilitative steps, including attending a successful restorative justice conference and completing a 20-week Living Without Violence programme and 100 hours of voluntary community work. The victim expressed forgiveness and the parties have reconciled. The court assessed the consequences of conviction to be between low and moderate. The court concluded that the consequences of conviction were not out of all proportion to the gravity of the offence and dismissed the appeal.

Orders