Dodia v Police - [2013] NZHC 515

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-0079 [2013] NZHC 515

BETWEEN CHIRAG PRAHLADBHAI DODIA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 13 March 2013

Appearances: R A B Barnsdale for Appellant
K R L Guthrie for Respondent

Judgment: 18 March 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 18 March 2013 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Almao Douch, Crown Solicitor, Hamilton: rlg@almaodouch.co.nz

Counsel: R A B Barnsdale, Hamilton: barnsdale@hlc.net.nz

DODIA V POLICE HC HAM CRI-2012-419-0079 [18 March 2013]

Introduction

[1] The Appellant appeals against conviction on a charge of attempting to receive an Apple iMac desktop computer (“computer”) valued at $2,000;1 alternatively against the refusal of his application that he be discharged without conviction on that charge.2

[2] Judge Ruth found the Appellant guilty of attempted receiving following a defended hearing in the District Court at Hamilton on 28 August 2012.3 The Judge dismissed two other charges of receiving. On the appeal against conviction, the Appellant submits that there was insufficient evidence before the Court to prove beyond reasonable doubt that the Appellant had attempted to receive the computer. Alternatively, the Appellant submits that such actions as he took were insufficient to constitute an “attempt” within s 72 Crimes Act 1961 (“Crimes Act”).

[3] The Appellant appeared for sentence on 30 October 2012. He sought a discharge without conviction pursuant to s 106 Sentencing Act 2002 (“Sentencing Act”).4 The Court may grant a discharge only if first satisfied that the consequences
of conviction would be out of proportion to the gravity of the offence.5 The Judge

was not so satisfied, declined the application and convicted and discharged the Appellant without further penalty. The Appellant’s case on appeal is that the Judge erred in concluding that the consequences of a conviction were not out of proportion to the gravity of the offence and that the Judge should have gone on to consider
whether or not he should grant a discharge under s 106 Sentencing Act.

1 Crimes Act 1961, ss 72 and 246(1).
2 Sentencing Act 2002, s 106(1).
3 Police v Dodia DC Hamilton CRI-2011-019-8829, 30 August 2012.
4 Police v Dodia DC Hamilton CRI-2011-019-8829, 30 October 2012.
5 Sentencing Act 2002, s 107.

Appeal against conviction

[4] An appeal against conviction proceeds by way of rehearing. The appeal is to be determined in accordance with the principles in Austin, Nichols & Co Ltd v Stichting Lodestar.6

[5] To prove a charge of receiving, the prosecution must prove beyond reasonable doubt that the accused has “received” property;7 that the property was stolen or obtained by any other crime; and that the accused knew, or was reckless as to whether, the property had been stolen or so obtained. The Appellant was charged on the basis that he had been reckless as to whether the property had been stolen or obtained illegally.

[6] The evidence adduced in support of the prosecution comprised…

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 Dodia v Police

Details

AGLC: Dodia v Police [2013] NZHC 515
Case: [2013] NZHC 515
Decision Date: 18 March 2013

CaseChat Overview and Summary

The High Court of New Zealand dealt with the case of Dodia v Police, where the Appellant, Chirag Prahladbhai Dodia, appealed against his conviction for attempting to receive a stolen Apple iMac desktop computer. The District Court had found the Appellant guilty of the attempted receiving charge and dismissed two other charges of receiving. The Appellant contested the sufficiency of the evidence to prove beyond reasonable doubt that he had attempted to receive the computer and that his actions did not constitute an attempt as defined by the Crimes Act 1961.

The Court examined the text messages exchanged between the Appellant and the vendor, which indicated the Appellant's interest in purchasing the computer and his recklessness regarding its legality. The Judge found that the Appellant's intent to purchase the computer was evident, subject to price. The Appellant argued that the texts did not prove his recklessness beyond reasonable doubt, but the Court found that considering the earlier texts, it was clear that the Appellant knew or was reckless about the computer being stolen. The Court concluded that the Appellant's actions were sufficient to constitute an attempt to commit the offence.

Regarding the discharge without conviction, the Appellant argued that the Judge had not considered mitigating factors, such as his immigrant status and self-employment, which could have influenced the proportionality assessment. However, the Court found that these factors were adequately reflected in the Judge's consideration of the Appellant's good character and lack of previous convictions. The Judge concluded that the consequences of a conviction would not be out of proportion to the gravity of the offence, and the Court upheld this decision on appeal.

The Court dismissed the appeal against conviction and the appeal against the refusal of a discharge without conviction.

Orders