Chawla v Police

[2017] NZHC 1368

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 a park bench in front of a real estate business in a shopping centre in Beach Haven.  She was by herself, waiting for a friend.

[8]      Mr Chawla came and sat on a nearby bench.  The complainant did not know him, but he looked at her, in her words, “deeply”.   Mr Chawla circled around the bench she was sitting on, looked as though he was going to cross the road, but then changed his mind and sat on the bench close beside her.

[9]      Mr Chawla complimented the complainant.  He told her that she was really pretty.  She thanked him.  Mr Chawla then asked her how old she was and where she lived, and said, on three separate occasions, “I’m taking you out for a drink”.  She told him that she was 15 years old, that she had a boyfriend, and that she lived in Gulf Harbour.  She gave him this information to try to put him off and she told him three times that she did not want to go out for a drink with him.   Mr Chawla’s attention to her made her feel “uncomfortable, awkward and nervous”.  She told Mr Chawla that her sister was coming to get her, hoping that this would cause him to leave.  However, he did not do so.

[10]     Mr Chawla got up from the bench he was sitting on and moved so close to her that he almost sat on her.  He then put his hand on her inner thigh and started moving it slowly up her thigh, near to the top.  Mr Chawla’s touch was not “grippie”, but rather he moved his hand “lightly up [her] thigh”.  The complainant described Mr Chawla’s actions as not aggressive.

[11]     Mr Chawla was about to put his other arm around her.  The complainant was shocked, nervous and scared.   She jumped up and looked around, hoping that she would see somebody she knew.  Mr Chawla asked her where she was going.  She ran across the road to a boy she recognised from her school, who was outside nearby shops with some of his friends.  She told him what had happened.

[12]     Mr Chawla backed away and then ran off.

[13]     Both the complainant and the boy from her school gave evidence at trial. Judge Sinclair  found the complainant  to  be  “credible,  honest  and  sincere”,  and concluded that her evidence was reliable.

[14]     At trial, Mr Chawla denied touching the complainant.  He denied circling the bench as described by her and denied asking her out for a drink.  He also denied that she told him her age.  Rather, he said that the complainant initiated the conversation. He denied standing up or going to her bench and said that he did not touch her leg at any time.  He positively asserted that he would not touch a girl’s leg because he is a married man and has too much to lose.

[15]     The Judge did not accept Mr Chawla’s evidence.   She found that it was inconsistent in many respects and that Mr Chawla added to and embellished his evidence as he was giving it to shore up his claim of innocence.   The Judge also noted that Mr Chawla’s evidence was in some respects inconsistent with his wife’s evidence, who he called in his defence.

District Court’s s 106 decision

[16]     Judge Sinclair noted Mr Chawla’s request for a discharge without conviction under s 106 of the Sentencing Act 2002.  She referred to relevant authority, and to the submissions of counsel who appeared before her.  She accepted that Mr Chawla’s actions were not at the highest end of the spectrum for offending of its type, but observed that the complainant was vulnerable given her age, and given the  age disparity between her and Mr Chawla (Mr Chawla was 40 years old at the time). She noted that the complainant was a female on her own.  She acknowledged that the touching was over clothes, but that it was to an intimate part of the complainant’s

body and that she had suffered harm, as was reflected in her victim impact statement. She  noted  other  relevant  factors,  namely  that  Mr  Chawla  has  no  previous convictions, and that he had attended a CADS course and completed an eight week Getting Started rehabilitation programme.  Nevertheless, she found the gravity of his offending to be “between low to moderate, but closer to moderate”.

[17]     The Judge then turned to address both the direct and indirect consequences of a conviction for Mr Chawla.   She noted that he was concerned that a conviction would result in him being deported, and restrict his ability to apply for a residency visa.  She accepted that a conviction could have significant consequences for both Mr Chawla and his wife.  She also accepted that a conviction for indecent assault could have a significant detrimental effect on Mr Chawla’s ability to obtain employment in his home country or in any other country he might choose to live in.

[18]     The Judge concluded that the consequences of a conviction for Mr Chawla did not outweigh the gravity of the offending, and observed that the immigration consequences were a matter for the immigration authorities. She held that the conviction was warranted to acknowledge the offending, and she declined to discharge Mr Chawla without conviction.

The submissions

[19]     Mr Chisnall, appearing for Mr Chawla, acknowledged that Judge Sinclair followed the correct process in assessing the application for a discharge without conviction.   He argued, however, that she overstated the gravity of Mr Chawla’s conduct, and that the gravity of the offending should more properly be described as low.  He also argued that the Judge erred in her assessment of the effects a conviction would have for Mr Chawla and for his wife.  Finally, in regard to this aspect of the appeal, he argued that the consequences, both employment and immigration related, are out of all proportion to the offending.

[20]     In regard to the sentence appeal, he accepted that offending of this type would ordinarily attract a sentence of community work, but submitted that the sentence of 100 hours imposed on Mr Chawla was excessive.  He also queried the Judge’s  decision  to  impose  intensive  supervision,  noting  that  that  sentence  was

seemingly imposed so that Mr Chawla could be assessed for the SAFE Programme. He argued that there was no basis for the conclusion that Mr Chawla has a sexual proclivity which warrants his enrolment in the SAFE Programme.

[21]     Mr Mortimer, for the Crown, opposed both appeals.   He argued that Judge Sinclair correctly assessed both the gravity of the offending, and the consequences of the conviction for Mr Chawla.  He also argued that there was no error by the Judge in assessing whether or not the gravity of the offending and its consequences were out of all proportion.   In regard to the sentence appeal, he acknowledged that the sentence was stern, but argued that it was not manifestly excessive.

The appeal

[22]   An appeal against a refusal to discharge without conviction is properly categorised as an appeal against both conviction and sentence.4

[23]     Section 107 of the Sentencing Act provides a gateway through which any discharge without conviction must pass, and it requires judicial assessment of the identified threshold criteria, as opposed to the exercise of a discretion.5   Such appeals

are subject to normal appellate principles.6

[24]     The  sentence  appeal  falls  to  be  dealt  with  under  s  250  of  the  Criminal

Procedure Act 2011.

Analysis

Discharge without conviction appeal

[25]     The starting point is s 11(1)(a) of the Sentencing Act, which obliges a Court to consider, where a person is found guilty or pleads guilty, whether the offender

might be more appropriately dealt with by way of a discharge without conviction.

4      Jackson v R [2016] NZCA 627.

5      H (CA680/11) v R [2012] NZCA 198 at [30].

6      Discussed in Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR

[26]     Relevantly, ss 106 and 107 of the Sentencing Act provide as follows:

106 Discharge without conviction

(1)       If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2)       A discharge under this section is deemed to be an acquittal.

…

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.

[27]     Section 107 sets the threshold test which must be met before the discretion in s 106 can be exercised.  There is a three-step approach.  The Court must consider first, the gravity of the offending, secondly, the consequences of conviction and finally, whether those consequences are out of all proportion to the gravity of the offending identified at step one.7  As was noted in Z v R:8

… when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, … it will be a rare case where a court will refuse to grant a discharge in such circumstances).

[28]     There   is   no   onus   of   proof   on   a   defendant   to   establish   that   the disproportionality test has been met.  Rather, the Court must be satisfied that there is a real and appreciable risk that the direct and indirect consequences will occur, albeit

that it need not be satisfied that those consequences are inevitable.9

7      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16].

8      Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; and see DC (CA47/2013) v R

[2013] NZCA 255 at [30-[35]; Ji v R [2015] NZCA 308 at [43]-[45].

9      Solicitor-General v Mohib [2016] NZHC 1908 at [44]; Iosefa v Police HC Christchurch CIV-

2005-409-64, 21 April 2005 at [34]; Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June

The gravity of the offending

[29]     I turn  to  address  the gravity of Mr Chawla’s  offending.    In  doing so,  I endeavour to take into consideration all relevant aggravating and mitigating factors which have been brought to my attention, both in relation to the offending and in relation to Mr Chawla.

[30]     First, Judge Sinclair correctly identified that the charge carries a maximum penalty of seven years’ imprisonment, and that it is subject to the three strikes regime in s 86 of the Sentencing Act.  The Judge accepted that the age of the complainant is an element of the charge, but noted that the maximum penalty reflects Parliament’s intention  that  this  type  of  offending  against  a  young  person  is  to  be  regarded seriously.

[31]     Turning  to  aggravating  factors,  in  my  judgment,  both  the  age  of  the complainant and the age discrepancy between her and Mr Chawla were relevant. Contrary to Mr Chisnall’s submissions, the Judge did not place undue weight on the complainant’s age.  She accepted that the age of the complainant is an element of the offence.  She concentrated more on the age discrepancy.  In this context, she noted that the complainant was 15 years old, and that Mr Chawla was 40 years old at the time.  The difference in age was significant and in my view, Judge Sinclair did not err in taking this factor into account.  It is commonly accepted that age disparity in

sexual type offending is an aggravating factor.10

[32]     Further, and again despite Mr Chisnall’s submission in this regard, in my judgment, the complainant was vulnerable at the time.  The offending did occur in the afternoon and in a shopping centre, but the complainant was by herself.  She was seated alone, waiting for a friend.   Judge Sinclair was entitled to take this into account.  Mr Chisnall ascribed to Judge Sinclair the conclusion that the complainant was “particularly vulnerable”.  Judge Sinclair did not say this or, on my reading of her decision, reach that conclusion.  She did refer to the complainant’s vulnerability, but only briefly.   In my view, the Judge did not place undue weight on, or over emphasise, that vulnerability.   It is noteworthy, and the Judge recorded, that Mr

Chawla’s own counsel at sentencing acknowledged that the complainant would be construed as vulnerable.   In my view, that concession was plainly appropriate – it cannot be denied.

[33]     Judge Sinclair took into account that the touching was over clothes.   She pointed out that it was nevertheless to an intimate part of the complainant’s body. Again, this cannot be denied and the Judge was required to this into account.   I acknowledge the point made by Mr Chisnall that the touching appears to have been relatively brief, and that it was not overtly aggressive.  As against this, the touching was clearly intimate, unwelcome and highly intrusive.  The Judge properly took into account the harm suffered by the complainant, as reflected in her victim impact statement.

[34]     Judge  Sinclair  looked  at  two  other  cases,  but  she  did  not  derive  any significant assistance from them.  I have considered both cases.11    They dealt with different factual situations.   Mr Chawla was found guilty following trial, and Mr Chisnall properly accepted that this was a point of distinction from the other cases referred  to  by  the  Judge.    There  were  many  other  differences.    Judge  Sinclair correctly observed that each case requires assessment on its own facts.  The Judge accepted that discharges without conviction have been given on occasion for offending of the kind which was in issue, and she was right to focus on the facts

which were before her.

[35]     Judge Sinclair acknowledged that Mr Chawla had no previous convictions, that he had attended a CAD course and completed the eight week Getting Started programme.  She gave him credit for these matters.

[36]     Judge  Sinclair  did  refer  to  Mr  Chawla’s  plea,  and  she  noted  that  the complainant was required to give evidence and that she was subject to vigorous cross-examination.  Mr Chisnall argued, and I accept, that a not guilty plea should not be seen as an aggravating factor.  It does not increase the gravity of the offending and in my judgment, the Judge erred when she held that this was a factor which should impact on her assessment.  Nevertheless, in the context of a decision in which

the Judge identified and weighed a wide range of aggravating and mitigating factors going to the gravity of the offending, in my view, the comments she made in this regard did not lead to an error in the overall assessment.

[37]     Mr Chisnall argued that remorse has been expressed by Mr Chawla.   Mr Chawla cannot point to his plea in this regard and I am not persuaded that any great or particularly genuine remorse has been shown.  Mr Chawla said in his affidavit that he regrets the offending, which he asserts he remembers little about.   This latter assertion is inconsistent with the evidence given by Mr Chawla at the trial, where he strongly denied that the offending took place and asserted an alternative version of events.  While remorse after conviction is not inconsistent with putting the Crown to proof, the genuineness of the remorse can be assessed by considering the appellant’s conduct at earlier stages in the proceeding.

[38]     In  my  judgment,  Judge  Sinclair  correctly  assessed  the  gravity  of  the offending as being low to moderate and closer to the moderate end of that spectrum. While there was no significant premeditation, Mr Chawla did target a young girl sitting alone.   There was a significant age discrepancy.   Despite being repeatedly rebuffed, he first moved towards her and then indecently assaulted her in a crude and highly offensive manner.  In my judgment, the Judge’s assessment of the gravity of the offending was correct.

Consequences of conviction

[39]     The  Judge  focussed  her  attention  on  both  the  employment  and  the immigration consequences for Mr Chawla of a conviction.  Mr Chisnall focussed his submissions largely on the immigration consequences.

[40]     I have set out above at [6] Mr Chawla’s current immigration status.

(a)      It  is  common  ground  that  he  will  not  be  subject  to  automatic deportation under either s 15 or 16 of the Immigration Act 2009 as a result of the conviction.

(b)As a temporary visa holder, he is liable to deportation due to his criminal offending.  A “sufficient reason” to deport a temporary entry class visa holder includes “criminal offending” – s 157(5)(b) of the Immigration Act.

(c)      If Mr Chawla receives a deportation notice, he will be required to apply for relief on humanitarian grounds under s 207 of the Immigration Act. That section presents a high threshold.

(d)      Mr Chawla’s two year essential skills work visa expires on 7 July

2017.  Mr Lal – an immigration lawyer – has deposed that convictions are considered when assessing whether or not an applicant is of good character, and whether he or she is entitled to a temporary visa.  To have his work visa renewed, Mr Chawla will be required to obtain a character   waiver,   and   Immigration   New   Zealand’s   Operational Manual (Administration) provides that those applicants who will not normally be granted temporary entry class visas, unless character waivers are obtained, include those who have been convicted at any time of an offence in New Zealand for which the Court has the power to impose imprisonment for a term of three months or more.

(e)      Although Mr Chawla has not as yet sought residency in this country, he has expressed interest in doing so.  He was selected from a pool of potential applicants, but this selection has lapsed.  Mr Lal expresses the opinion that it is highly likely that a conviction will prevent Mr Chawla from successfully applying for residency.  Again, Mr Chawla will need a character waiver.

(f)      Character waivers are a matter of discretion, and Mr Lal deposes that in his experience, they are not easily obtained where the applicant does not meet the character requirements set out in the Immigration Act, or  Immigration New Zealand’s  Operational Manual.   That is apparently particularly so where the conviction is for a sexual offence.

[41]     Mr Chawla’s wife is currently living in New Zealand.   She arrived on 20

October 2012 on a student visa.  She has completed an MBA degree at AUT, and she now works  as  a telecommunications  consultant.    Mr  Lal  has  deposed  that  Mrs Chawla’s visa is linked to her husband’s visa, and that she is a dependent visa holder. If Mr Chawla is deported, then Mrs Chawla will have to leave New Zealand as well.

[42]     Where a risk of deportation is raised as a consequence of a conviction, the Courts have generally held that the deportation decision should be left to the appropriate   immigration   authorities.12       In   Zhang   v   Ministry   of   Economic

Development, Asher J observed as follows:13

In relation to a conviction affecting an offender’s immigration status, or indeed ability to travel overseas, the courts often conclude that it is appropriate for the consequences of conviction to be resolved by the appropriate authorities, rather than the Court attempting to pre-empt that decision-making process by a decision to discharge without conviction: … There is nothing that requires the courts to intervene to try and impose their perception of what the right immigration consequences should be. That is best left to the immigration authorities. But a Court’s assessment of culpability in the sentencing exercise may assist those authorities. And there will always be occasions where in a finely balanced case a discharge may be warranted on these types of grounds: … The case for discharge may not be so strong where the details of the offending will be known and closely examined by the relevant authority in any event, than where the query will be only as to prior convictions, for instance in an application for professional certification.

[43]     In the present case, Judge Sinclair noted these various principles and she referred to the relevant authorities.  She analysed Mr Chawla’s immigration status. She referred to Mrs Chawla’s position.  She specifically noted that Mr Chawla has submitted an expression of interest for residency with Immigration New Zealand, and that he was selected from the pool of eligible applicants.   She noted that Mr Chawla did not lodge an application for residency, apparently because he is awaiting the outcome of this proceeding.

[44]     In my judgment, Judge Sinclair appropriately assessed relevant matters.  This was  not  a  case  where  a  discharge  without  conviction  was  necessary  to  send  a

12     Ji v R, above n 8 at [49]; R v Foox [2000] 1 NZLR 641 (CA) at [39]; R v Mu CA262/03, 24

October 2003; A (CA747/10) v R [2011] NZCA 328 at [30]; Solicitor-General v Mohib, above n

9, at [47]-[48].

13     Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14], endorsed by the Court of Appeal in Ho v R [2016] NZCA 229 at [15].

message to Immigration New Zealand, and Judge Sinclair did not err when she held that Mr Chawla’s case should be considered by immigration authorities.   She was correct to leave it with those authorities, by reference to her assessment of the gravity of Mr Chawla’s offending.

[45]     In relation to the employment consequences, Judge Sinclair noted that they were not conclusive.  She was unsure what difficulties Mr Chawla would have if he chose to return to India, and observed that it was not possible from the information Mr Chawla had provided to determine what impact the conviction would have on him gaining employment in his home country.  She also referred to an affidavit filed by Mr Chawla’s employer recording that he was aware of the matter and that he did not intend to terminate Mr Chawla’s employment.   The Judge cited observations

made by the Court of Appeal in Edwards v R,14 where the Court observed as follows:

... We do accept that some employers may not be prepared to look beyond the bare fact of a conviction to read what the courts had to say about its circumstances and mitigating factors, but we are not prepared to assume that all or even most will behave in that way, especially where the offender is generally a person of good character, as in this case. If accepted, Mr Newell's submission would  result in  discharges  being given  routinely in indecent assault cases falling at the lower end of the scale of seriousness.

The Judge noted that because Mr Chawla was supported by his employer, his immediate employment was not jeopardised, and that there was no evidence other than Mr Chawla’s generic comments that a conviction would impose difficulties for him.  I cannot see any fault in the Judge’s reasoning.

Disproportionality

[46]     Mr Chisnall’s submissions in regard to this issue largely re-emphasised the points he had made earlier in relation to the gravity of the offending and the consequences  of  a  conviction.    He  attributed  a  number  of  comments  to  Judge Sinclair which were not in fact made by her, but rather were quotes from various

judgments.

14     Edwards v R, above n 11, at [18].

[47]     In my judgment, Judge Sinclair appropriately weighed the gravity of the offending and the consequences of conviction, and correctly concluded that they were not out of all proportion.   Any conviction carries consequences.   A natural consequence of a conviction for a person in Mr Chawla’s position is that it may affect his or her immigration or employment status.   In my view, the Judge was

correct when she cited the comments in the Court of Appeal in Ho v R:15

… even if it is unlikely Mr Ho will be able to stay in New Zealand, that does not amount to a disproportionate consequence of the convictions. As a foreign national he has no general right to stay in New Zealand. It is a matter for immigration services to decide whether to renew his visa, having regard to factors including the Court's assessment of the gravity of Mr Ho's offending.

Sentence appeal

[48]     Mr Chisnall argued that the overall sentence was manifestly excessive.  He referred to the Court of Appeal’s decision in Edwards,16  where the offender was sentenced to 80 hours’ community work in combination with ordinary supervision.

[49]     I am not persuaded that the sentence was manifestly excessive.

(a)      This case involves a greater age disparity than that in Edwards, and in my judgment, the ultimate sentence of 100 hours’ community work, as opposed to 80 hours’ community work, is not so far removed from that upheld by the Court of Appeal in Edwards that it can be said to be manifestly excessive.

(b)Regarding supervision, the supervision imposed was intensive supervision.   Intensive supervision is one of four community-based sentences.     It  ranks  in  the  hierarchy  of  penalties  along  with community detention. An individual subject to a sentence of intensive supervision is supervised by a probation officer in accordance with s

54J of the Sentencing Act, and is subject to the standard conditions set

out in s 54F and any special conditions imposed by a Court under s

15     Ho v R, above n 13, at [15].

16     Edwards v R, above n 11.

54G or 54I.  The key differences between intensive supervision and supervision  are  that  a  sentence  of  intensive  supervision  can  be imposed for a maximum of two years, whereas supervision may only be imposed for a maximum of one year.   Intensive supervision typically involves a high degree of reporting to a probation officer, and it permits residential programmes as a special condition, whereas

supervision  does  not.17    Here,  Mr  Chawla  was  sentenced  to  15

months’ intensive supervision.  The Judge envisaged that Mr Chawla might become involved  in the SAFE programme.   This had been recommended by the Probation Service, and there was a clear factual basis for Judge Sinclair to endorse that recommendation.  Mr Chawla has yet to be assessed for the SAFE programme.  He may or may not be suitable for it.

[50]     The  combined  sentence  of  100  hours’ community  work  and  15  months’ intensive supervision is not at odds with other cases involving similar offending.18   It cannot be said to be manifestly excessive.

Result

[51]     The appeals against both conviction and sentence are dismissed.

Wylie J

17     Soloman v R [2012] NZCA 300 at [14].

18     See, eg RG v Police [2015] NZHC 72 – 150 hours’ community work and 12 months’ supervision

in relation to one charge of indecent assault by a 34 year man on a 13 year old girl; Singh v

Police [2015] NZHC 2003 – 250 hours’ community work, offender 24 years old, victim between

12 and 16 years old; R v Campbell [2016] NZHC 2817 – three strikes regime applied; but for that, the Court would have imposed a 12 month sentence of imprisonment. Prisoner stood behind a female Corrections Officer, grabbed her buttock and squeezed it hard for one to two seconds.