Chok v Police - [2017] NZHC 1738

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CRI 2017-085-000019

[2017] NZHC 1738

BETWEEN
PANARETH CHOK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 July 2017

Appearances:

G Turkington for the Appellant R De Silva for the Respondent

Judgment:

27 July 2017

RESERVED JUDGMENT OF CHURCHMAN J

Introduction

[1] Mr Chok was sentenced to 26 months’ imprisonment for charges of injuring with reckless disregard,¹ driving with excess breath alcohol² and driving while disqualified³ on 30 November 2016 in the Wellington District Court by Judge Davidson.⁴
[2] Mr Chok applies for leave to appeal against that sentence on grounds there was disparity between Mr Chok’s sentence and that received by his co-offender, Mr Ailao. Mr Turkington, counsel for Mr Chok confirmed that the sentence was not challenged on the basis that it was manifestly excessive.

1      Crimes Act 1961, s 189(2). Maximum penalty five years’ imprisonment.
2      Land Transport Act 1998, s 56(1). Maximum penalty two years’ imprisonment/$6,000 fine.
3      Sections 32(1)(a) and 32(4). Maximum penalty two years’ imprisonment/$6,000 fine.
4      Police v Chok [2016] NZDC 24344.

CHOK v NEW ZEALAND POLICE [2017] NZHC 1738 [27 July 2017]

Background

Mr Chok

[3] Mr Chok was convicted of injuring with reckless disregard following a judge alone trial before Judge Davidson on 22 September 2016.⁵ That conviction arose from events on 8 February 2015.

[4] At around 4.15pm, Mr Chok was walking down Courtenay Place, Wellington with Mr Ailao. Both had been consuming alcohol. Mr Ailao approached [female victim] from behind, smacked her bottom and acted in a crude manner when she and her husband turned around. As a result, [Male victim] contacted the police on his cellphone.

[5] Mr Chok and Mr Ailao walked away and got into a car which was parked on the opposite side of the road. When [Male victim] approached the car to get its registration details for the police, Mr Chok and Mr Ailao attacked him. Both men approached the victim and punched him to the head and upper body. One grabbed him by his t-shirt, causing it to rip. [Male victim] was pulled to the ground and struck his head on a shop window as he attempted to back away. While on the ground both men kicked [Male victim] to his upper body and he briefly lost consciousness.

[6] [Male victim] was taken to hospital and had a broken clavicle, a cut and bruised right eye and concussion. At the time of trial, [Male victim] was still suffering symptoms and was on a return to work plan. [Male victim]’s victim impact statement demonstrated he was badly affected financially, emotionally and psychologically. [Female victim] was also negatively impacted.

[7] On 8 January 2016, Mr Chok was stopped driving by the police while on bail. He was at the time disqualified and driving with a high blood alcohol reading of nearly double the legal limit. Mr Chok was found guilty for this offending following another judge-alone trial before another judge.

5 Police…

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 Chok v Police

Details

AGLC: Chok v Police [2017] NZHC 1738
Case: [2017] NZHC 1738
Decision Date: 27 July 2017

CaseChat Overview and Summary

The case of Chok v Police was heard in the High Court of New Zealand and involved an appeal by Mr. Chok against his sentence. Mr. Chok was sentenced to 26 months' imprisonment by the Wellington District Court for charges of injuring with reckless disregard, driving with excess breath alcohol, and driving while disqualified. He appealed on the grounds that there was a disparity between his sentence and that of his co-offender, Mr. Ailao, who received a 22-month sentence. The central legal issue was whether the disparity between the sentences was unjustifiable and warranted an appeal.

The court considered the principles of sentencing consistency and the factors relevant to assessing parity between co-defendants' sentences. It was noted that the starting points for both Mr. Chok and Mr. Ailao were set with considerations of parity, and the differences in their final sentences were due to mitigating factors such as guilty pleas, remorse, and rehabilitation efforts. The court held that while the starting points for both offenders were similar, the final sentences differed due to valid mitigating factors for Mr. Ailao, which justified the disparity. The court concluded that there was no error in the sentence imposed by the District Court and dismissed the appeal.

The final orders of the court were to dismiss the appeal, affirming the 26-month imprisonment sentence for Mr. Chok. The decision underscored the importance of considering parity in starting points rather than end sentences and emphasized that sentencing judges should not take into account the statutory regime for parole or other earlier release when fixing the length of the nominal sentence.

Orders