Dodia v Police
[2013] NZHC 515
•18 March 2013
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: [email protected]
Counsel: R A B Barnsdale, Hamilton: [email protected]
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 text messages between telephone numbers ending in 4069 and 9239 (“4069” and “9239”). The Police had been making enquiries in connection with the person they believed held
4069 (to whom I refer as the vendor) and in the course of doing so they identified text messages exchanged with 9239, which the Appellant had told them was his cellphone number.
[7] The text messages were produced in evidence by consent.8 In his judgment the Judge said that the Appellant did not challenge the content of the texts or their attribution to him or, in other words, that the cell phone said to be that of the Appellant (being 9239) was in fact the Appellant’s.9 The texts produced were sent between 30 October 2011 and 17 November 2011. Those in respect of the computer
were exchanged on 1 November 2011 and read as follows:
Time From To Content 13:26:27
[4069]
[9239]
Gt aple imac 400 gt mouse an keyboard wd it yes or no bro
13:27:11
[9239]
[4069]
Is it a desk top or lappy
6 Austin, Nichols & Co Ltd v Stichting Lodestar [2008] 2 NZLR 141 at [16].
7 Crimes Act 1961, s 246(3).
8 Police v Dodia Case No 2011-019-8829, Exhibit 5, 28 August 2012.9 Police v Dodia, above n 3, at [41].
13:34:11 [4069] [9239] Desktop bt hardriue built in screen 13:37.02
[9239]
[4069]
N hw mch do u wnt for it bro
13:38:41
[4069]
[9239]
Dy wnt 450
13:40:32
[9239]
[4069]
I cn try for u bt its gone hard coz u knw apple is risky one
14:02:30
[4069]
[9239]
Sold
[8] There was no evidence at trial as to whether the computer was sold to the
Appellant or to a third party.
[9] There was no dispute at trial that the Apple iMac referred to in the first text is the computer and that it was owned by and stolen from a third party, sometime after
9.30 am on 1 November 2011.
[10] The Judge considered that the texts evidenced the Appellant’s clear interest in purchasing the computer and that the content of the texts established that the Appellant was reckless as to whether the item was stolen. The Judge was satisfied that, subject to price, the Appellant intended to purchase the computer.
[11] Counsel for the Appellant submits that the content of the texts does not prove beyond reasonable doubt that the Appellant was reckless as to whether the computer was stolen or obtained by any other crime. Crown counsel submits that the inference to be drawn from the texts is clear, particularly that from the Appellant timed at
13:40.
[12] For myself I am not sure that, considered in isolation, the texts of
1 November 2011 would constitute proof beyond reasonable doubt of the required recklessness. However, that is not the end of the matter because Crown counsel also relies on texts preceding those to which I have referred. Crown counsel referred me to the following messages, sent on 30 October 2011:
Time From To Content 01:24:38
[4069]
[9239]
U up bro gt sum stuf ur interestd in
10:01:19
[9239]
[4069]
Wat u got bro
17:08:46 [4069] [9239] BRO GT 42NCH PLAZ PANASONIC WD REMOTE 200 17:09:57
[9239]
[4069]
Wats da model no bro
17:10:59
[4069]
[9239]
DNT NO ITS N CLAUDE ST AT MA BRO NLAWS PANASONIC VIERRA
42 NCH PLAZ
17:14:45
[4069]
[9239]
TXT FAST BRO F U WNT IT SO I CN TX MA BROTHER N LAW N TELL HM
17:15:36
[9239]
[4069]
Ya bro bt i wanna knw whetha its ful hd or nt so tell me da model no
17:17:21
[4069]
[9239]
THP42S10Z DAZ DA MOD NUM DAZ CHEAP BRO 2 HUNDY
17:17:44
[4069]
[9239]
GT BUILT IN FREEVIEW
17:27:30
[9239]
[4069]
Bro thy say its not ful hd offrerng 150
17:44:08
[4069]
[9239]
DY SD 200 DATZ CHEAP AZ F U WNA FULL HD 42 DY WIL CHARGE
350
14:44:52 [4069] [9239] DY JST TXD BRO YEB DY TKE 150
GO 73 CLAUDE ST NW F U WNT IT
[13] The Judge did not refer to these texts, saying that he thought he could look only at those of 1 November 2011. I accept Crown counsel’s submission that regard may be had to the text messages that precede the exchange regarding the computer and that, if such regard is had, it would have been clear to the Appellant that the vendor was offering to sell hi, a computer that had been stolen or otherwise obtained illegally. Counsel for the accused did not dispute the submission that regard might be had to the earlier texts although disputed the inference to be drawn from them.
[14] From the texts of 30 October 2011, I consider it would have been apparent to the Appellant that the goods, and the computer, offered for sale were stolen, and that the Appellant knew that or was reckless as to the same. I take into account the time at which the vendor sent the first text on 30 October; the content of that text; the price at which the TV was sold; and the suggestion that a full HD TV would be offered at $350. The exchange in respect of the computer occurs only two days later.
I am satisfied that the Appellant was at least reckless as to whether the computer offered for sale had been stolen or obtained by any other crime.
Attempt
[15] As an alternative to the submission as to a lack of evidence, the Appellant submits that his actions, such as they were, did not constitute an attempt.
[16] Section 72 Crimes Act sets out the circumstances in which a person is guilty of an attempt, and reads as follows:
72 Attempts
(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
(2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
[17] Counsel for the Appellant submits that such acts as the Appellant took were merely preparatory to any receiving, and were not sufficiently immediate or proximate to the intended offence.
[18] I do not accept that submission. The Appellant must be taken to have sent two texts which sought information about the computer being offered and its price. The third text evidences clear interest in completing the transaction. I am satisfied that the Appellant’s actions were sufficient to constitute an attempt.
[19] I dismiss the appeal against conviction accordingly.
Discharge without conviction
[20] The principal point on the Appellant’s appeal against the refusal of a discharge is that, in considering s 107 Sentencing Act, the Judge was guided by Blythe v R,10 which at the time was a leading Court of Appeal authority as to the matters to be considered when applying s 107. As counsel for the Appellant submits, Blythe has been overtaken by the Court of Appeal’s recent decision in Z v R,11 that judgment having been delivered after Judge Ruth declined the Appellant’s application for a discharge.
[21] An applicant for a discharge under s 106 must first satisfy s 107. These provisions read 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.
...
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.
[22] Section 107 requires the Court to address three matters: (a) the gravity of the offence;
(b) the direct and indirect consequences of a conviction; and
(c) whether (b) is out of proportion to (a).
10 Blythe v R [2011] 2 NZLR 620 (CA).
11 Z (CA447/12) v R [2012] NZCA 599.
[23] It is only if (b) is out of proportion to (a) that the Court then goes on to consider s 106. In this case, Judge Ruth determined that the Appellant did not meet the threshold of s 107, so there was no need to consider s 106.
[24] An appeal against a determination under s 107 is a general appeal. The proportionality test is a matter of fact, requiring judicial assessment, and subject to normal appellate principles.12
[25] It is clear from Z that aggravating and mitigating factors relating to the offending and to the offender are to be taken into account in making the assessment required by s 107.13 The Court also said that the logical point at which to consider such matters is when assessing the gravity of the offence, although the critical matter is that such factors are considered and the point in the analysis at which they are considered is unlikely to be material.
[26] Counsel for the Appellant submits that, in light of Z, the Judge erred in failing to assess mitigating factors relating to the Appellant and that the Judge would have reached a different conclusion had he done so,
[27] The Judge considered the Appellant’s offending to be “relatively serious albeit on an attempted basis”. The computer was valuable, the maximum penalty on conviction was seven years’ imprisonment and, although the Appellant was guilty of an attempt and any sentence imposed would reflect that fact, the gravity of the offence was not necessarily thereby reduced. In making that assessment, the Judge referred to mitigating factors relating to the Appellant and in particular to an absence
of previous convictions,14 to the Appellant’s remorse and to his being satisfied that
the Appellant was unlikely to appear again.15
[28] Counsel for the Appellant submits that the Judge failed to refer to and presumably omitted to consider other mitigating factors that were put to him. These
were that the Appellant is an immigrant of 11 years’ standing, has gone to some
12 H (CA680/11) v R [2012] NZCA 198 at [30].
13 Z (CA447/12) v R, above n 10, at [27].
14 Police v Dodia, above n 4, at [30].15 Ibid, at [36].
lengths to educate himself since his arrival in New Zealand, and that he is self- employed in two businesses in which he has a financial interest.
[29] Although the Judge did not expressly refer to these matters, I do not think they take the Appellant any distance. The Judge referred to the Appellant’s previous good character and lack of remorse and in my view the points put to me on appeal are adequately reflected under those headings. In fact, on one view of it, the factors now relied upon do not assist the Appellant as there could be no suggestion that this was impulsive, spur of the moment offending arising from financial hardship.
[30] For the sake of completeness I mention that before the Judge (then) counsel for the Appellant submitted that a conviction would diminish or affect the Appellant’s prospects of obtaining liquor licences, lotto concessions and insurance for the businesses, and would deter suppliers from trading with him.
[31] The Judge accepted a submission by the Police that the correct course was to let the Liquor Licensing Authority and Lotteries Commission make their own assessment of the significance, if any, of a conviction (see R v Ranchhod and Graves v Police).16 As for insurance, for reasons set out in the judgment, the Judge was not persuaded that the offending would affect the Appellant’s prospects of obtaining cover.
[32] Having considered these matters Judge Ruth reached the conclusion that the consequences of a conviction would not be out of proportion to the gravity of the offence. I am not persuaded that the Judge made any error in that assessment and dismiss this appeal accordingly.
..................................................................
M Peters J
16 R v Ranchhod [2009] NZCA 340; and Graves v Police HC Rotorua CRI-2010-463-57, 28 February
2011
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