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Chawla v Police

Chawla v Police

Case [2017] NZHC 1368 21 June 2017

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NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000097 [2017] NZHC 1368

BETWEEN
SANJEEV CHAWLA

Appellant

AND

NZ POLICE Respondent

Hearing: 12 June 2017

Appearances:

N P Chisnall for Appellant
M Mortimer for Respondent

Judgment:

21 June 2017

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie
On 21 June 2017 at 11.00am Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
N P Chisnall, Auckland
M Mortimer, Auckland
Crown Solicitors, Auckland

CHAWLA v NZ POLICE [2017] NZHC 1368 [21 June 2017]

Introduction

[1] On 17 October 2016, following a Judge-alone trial, Judge Sinclair, in the District Court at North Shore, found the appellant Mr Chawla guilty of one charge of doing an indecent act on a young person under 16 years of age.1 On 14 March 2017, Judge Sinclair declined to discharge Mr Chawla without conviction.2 Rather, she entered a conviction against him and sentenced him to 100 hours’ community work
and 15 months’ intensive supervision.

[2] Mr Chawla appeals:

(a) Judge Sinclair’s decision to decline his application for a discharge

without conviction; and

(b) the sentence imposed by the Judge.

Further evidence

[3] Mr Chawla applied to adduce further evidence, namely an affidavit from a Mr Jag Lal, an immigration lawyer. The affidavit deals with Mr Chawla’s immigration status, and the immigration status of his wife.

[4] Although the respondent opposed the application to adduce the further evidence, the opposition was not vigorous. Mr Mortimer, appearing for the respondent, properly accepted that the Court could well be assisted by Mr Lal’s affidavit. He also accepted that there is no prejudice to the respondent if the affidavit is admitted.

[5] I gave leave to Mr Chawla to file the further affidavit. While the evidence is not fresh, it is credible and it will assist me in determining the appeal.3

1      Police v Chawla [2017] NZDC 26861.
2      Police v Chawla [2017] NZDC 5603.
3      Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

Mr Chawla

[6] Mr Chawla is a 41 year old Indian national. He came to New Zealand in

2003 to join his wife, who was already in this country studying at AUT. She held a study visa. Mr Chawla was granted a work visa and initially he found employment as a factory hand. In May 2015, he obtained work as an acrylic fabricator. This enabled him to obtain a work visa under the essential skills category. It expires on 7
July 2017.

The offending

[7] At 4.00pm on Saturday 23 February 2016, the complainant, a 15 year old girl, was sitting on…

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 Chawla v Police

Details

AGLC: Chawla v Police [2017] NZHC 1368
Case: [2017] NZHC 1368
Decision Date: 21 June 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Sanjeev Chawla appealed against his conviction and sentence for indecently assaulting a 15-year-old girl. Chawla was found guilty by Judge Sinclair in the North Shore District Court and sentenced to 100 hours of community work and 15 months of intensive supervision. Chawla's appeal was two-fold: he challenged the decision to deny him a discharge without conviction and the severity of his sentence. The court allowed Chawla to adduce further evidence in the form of an affidavit from an immigration lawyer, which assisted in determining the appeal.

The court assessed the gravity of Chawla's offending, considering the age of the complainant, the age discrepancy between Chawla and the complainant, and the complainant's vulnerability. The court held that the Judge correctly assessed the gravity of the offending as low to moderate and closer to the moderate end of that spectrum. The court also considered the consequences of a conviction for Chawla, including potential immigration and employment consequences. The court found that the Judge appropriately assessed these consequences and concluded that they were not out of all proportion to the gravity of the offending.

Regarding the sentence, the court found that the 100 hours of community work and 15 months of intensive supervision were not manifestly excessive, given the nature of the offence and the greater age disparity compared to other cases. The combined sentence was not at odds with other cases involving similar offending and, therefore, could not be considered manifestly excessive.

The appeals against both conviction and sentence were dismissed.

Orders