Dayal v R - [2016] NZHC 1027

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000079 [2016] NZHC 1027

BETWEEN
SHIU DAYAL

Appellant

AND

THE QUEEN Respondent

Hearing: 16 May 2016

Appearances:

A G Speed and S Clark for Appellant
D B Stevens and H D Benson-Pope for Respondent

Judgment:

18 May 2016

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 18 May 2016 at 4.30pm
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel: Crown Law, Manukau A Speed, Auckland

DAYAL v THE QUEEN [2016] NZHC 1027 [18 May 2016]

Introduction

[1] The appellant, Mr Dayal, appeals against a sentence of two years and six months’ imprisonment, imposed on him by Judge C S Blackie in the District Court at Manukau on 22 January 2016. The sentence was imposed in regard to two charges of indecent assault, contrary to s 135 of the Crimes Act 1961.

[2] Mr Dayal had entered guilty pleas to the charges. The pleas were entered on the first morning of his trial, following the amendment of the charge list. A charge of sexual violation and three charges of indecent assault were withdrawn and replaced with two charges of indecent assault.

Background

[3] Mr Dayal is 62 years old. He was a care worker.

[4] The victim was a 24 year old female, who lives in an IHC care home. She suffers from a mental disability.

[5] On 31 May 2014, Mr Dayal was called to work the night shift at the IHC care home where the victim resided. He was the only carer in the house. As the victim was going to bed that evening, she complained of shoulder pain. Mr Dayal advised her to take Panadol. When that did not work, he instructed her to sit on the floor in the lounge. He massaged her shoulder and back. During the massage he touched the side and front of the victim’s breasts under her bra on more than one occasion. The victim then lay on her front on a sofa in the lounge, with her head on a pillow that was on Mr Dayal’s lap, while he continued to massage her.

[6] The victim became tired and went to her room. Mr Dayal followed her. She told him she wanted to go to sleep, but he remained and started rubbing and touching her. She told him “no”, and said that she did not want to have sex. Mr Dayal told her they were not going to have sex, and that he normally only did this to his wife. He then took off his t-shirt. He pulled up the victim’s singlet and bra, and touched her on her exposed breasts and stomach. He pulled open her thighs and rubbed her inner thighs and her vagina through her pyjama pants. Mr Dayal licked the victim

on her breasts and stomach a number of times. He then pulled her pyjama pants down a short way, exposing her vagina, before licking around it with his tongue.…

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 Dayal v R

Details

AGLC: Dayal v R [2016] NZHC 1027
Case: [2016] NZHC 1027
Decision Date: 18 May 2016

CaseChat Overview and Summary

In Dayal v R, the appellant, Mr. Dayal, appealed against his sentence of two years and six months’ imprisonment, imposed by Judge C.S. Blackie in the District Court at Manukau on 22 January 2016. The sentence was imposed in relation to two charges of indecent assault, contrary to section 135 of the Crimes Act 1961. Mr. Dayal had entered guilty pleas to the charges. The appellant argued that the sentence was manifestly excessive, for various reasons. The court considered the appellant's arguments and concluded that the sentence imposed by the District Court was not manifestly excessive, and the appeal was dismissed.

The court examined the starting point for the sentence, the personal circumstances of the appellant, and the discount for the guilty pleas. The court found that the starting point of three and a half years’ imprisonment was well within the available range, and there were significantly aggravating features to Mr. Dayal’s offending, such as the breach of trust and the exploitative and grossly demeaning nature of the assault. The court also found that Judge Blackie did not fail to properly assess Mr. Dayal’s personal circumstances or to take into account the desirability of his rehabilitation. The court accepted that the Judge gave appropriate weight to denunciation and deterrence in the context of this offending and was entitled to give greater weight to these purposes than to rehabilitation. Finally, the court found that a 20 per cent discount for the guilty pleas was appropriate, given the strength of the Crown case and the fact that Mr. Dayal only entered his guilty pleas on the morning that the trial commenced.

Orders