Din v The Queen - [2014] NZCA 432

IN THE COURT OF APPEAL OF NEW ZEALAND

CA721/2013
[2014] NZCA 432

BETWEEN	SURESH DIN Appellant
AND	THE QUEEN Respondent

Court:

Harrison, Courtney and Clifford JJ

Counsel:

P F Wicks QC for Appellant
B H Dickey and G H Vear for Respondent

Judgment:

(On the papers)

3 September 2014 at 10 am

JUDGMENT OF THE COURT

A Extension of time to appeal against sentence granted.
B The appeal is allowed.
CThe sentence of community work is quashed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

In our decision dated 10 July 2014 we allowed Suresh Din’s appeal against conviction on four charges of using a document dishonestly under s 229A(b) of the Crimes Act 1961 and seven under s 228(b).[1] The convictions related to false invoices that Mr Din rendered to the North Shore City Council between 2000 and 2009. We did not order a retrial. We dismissed Mr Din’s appeal against seven further convictions relating to false income tax returns.
[1]Din v R [2014] NZCA 316.
Mr Din did not appeal his sentence but sought leave to do so following the delivery of our decision quashing the 11 convictions. Judge Gibson had imposed a sentence of 10 months’ home detention and 325 hours’ community work in respect of all the offending.[2] The proposed ground of appeal is that this sentence reflected the 18 charges on which Mr Din had been convicted and must now be regarded as manifestly excessive.
[2]R v Din DC Auckland CRI-2010-004-20916, 3 October 2013 at [26].
There is no objection to the leave application and we extend time for Mr Din to appeal against sentence.

Sentencing in the District Court

Mr Din rendered the false invoices at the instigation of his friend and co‑offender, Mr Maharaj, who worked for the Council. Judge Gibson rightly viewed Mr Din as less culpable than Mr Maharaj. He took a starting point of three years compared with the four year starting point taken for Mr Maharaj. The Judge noted that Mr Din felt a sense of obligation to Mr Maharaj for the latter’s help in the past, and recognised Mr Din’s previous good character and lack of previous convictions. He allowed a discount of nine months for these factors. He allowed a further discount of six months in recognition of Mr Din’s offer of $70,000 reparation. That would have produced an end sentence of 21 months’ imprisonment. However, the Judge regarded a custodial sentence as inappropriate and imposed a sentence of ten months’ home detention and 325 hours’ community work.
In imposing these sentences the Judge did not distinguish between the convictions arising from the false invoices as opposed to the income tax returns and did not impose separate sentences for each charge.

Appeal against sentence

Mr Wicks QC, for Mr Din, submitted that the Judge made an error in not identifying a separate sentence for each offence or for each category of offences. He submitted, further, that the charges relating to the tax…

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 Din v The Queen

Details

AGLC: Din v The Queen [2014] NZCA 432
Case: [2014] NZCA 432
Decision Date: 3 September 2014 at 10 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Suresh Din against his sentence, following the Court's earlier decision to allow an appeal against his conviction on four charges of using a document dishonestly and seven charges of false income tax returns. The appeal against the sentence was brought following the quashing of the convictions, with the argument that the sentence was manifestly excessive in light of the reduced number of charges. The Court extended time for Mr Din to appeal against the sentence and allowed the appeal, quashing the sentence of community work.

The legal issues before the Court were whether the sentencing Judge erred in not imposing separate sentences for each offence or category of offences, and whether the sentence imposed was manifestly excessive in light of the reduced number of charges. The Crown argued that the sentence was appropriate, given the seriousness of the tax return charges, while the Appellant's counsel submitted that the sentence should be regarded as manifestly excessive and the community work sentence quashed.

The Court found that the proper course for the sentencing Judge was to identify appropriate sentences for the group of charges relating to the invoices and, separately, those charges relating to the tax returns, and then to impose discrete sentences on each charge, with an uplift to reflect the totality of the offending. The Court considered that the charges relating to the tax returns on their own would not have attracted the sentence imposed, and that the additional sentence of community service rendered the sentence excessive following the outcome of the appeal. The Court quashed the sentence of community work.

The Court of Appeal of New Zealand allowed the appeal and quashed the sentence of community work imposed on Suresh Din. The sentence of home detention remains in place, and the Appellant is close to completing it.

Orders