Jain v Police

[2020] NZHC 3232

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2020-404-000260

[2020] NZHC 3232

BETWEEN

PRATEEK JAIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	7 December 2020
Appearances:	Paul Wicks QC for Appellant B Hamilton for Respondent
Judgment:	7 December 2020

JUDGMENT OF DUFFY J

Solicitors/Counsel:

Paul Wicks QC, Auckland Crown Solicitor, Auckland

JAIN v NEW ZEALAND POLICE [2020] NZHC 3232 [7 December 2020]

[1]                 Mr Prateek Jain appeals his conviction for receiving stolen property valued at over $1,000. 1

[2]                 On 1 November 2011, a burglary took place at a residential address in Massey, and a R34 carbon-fibre car bonnet was stolen. The Police summary of facts records the bonnet was valued at approximately $1,200.

[3]                 On 20 August 2012, Mr Jain, then aged 17, pleaded guilty to, and was convicted of, receiving stolen property valued at over $1,000 (the 2012 conviction).

[4]                 It has now come to light, and the appellant and the respondent agree there is no factual foundation to support the charge The bonnet was purchased in 2007 for

$1,200. As at the date of the receiving by the appellant in November 2011 the bonnet must have depreciated in value owing to the passage of time, as it then had some damage to it. The value of the bonnet must have been less than $1,000 at the time the appellant received in it November 2011.

[5]                 The appellant and the respondent accordingly now agree that the appellant should not have pleaded guilty to the offence as the factual foundation to support it was absent. Both accept justice has thereby miscarried. Both accept the appropriate disposition of this appeal is the quashing of the 2012 conviction and the substitution under s 234 of the Criminal Procedure Act 2011 for a conviction for receiving stolen property of a value between $500 and $1,000.

[6]                 It is plain to me the appeal must be allowed. The circumstances fall into the second class of exceptional circumstances reiterated by Kós P in Whichman v R2 namely that on the newly admitted facts the appellant could not, in law, have been convicted of the offence charged.

1      Crimes Act 1961, ss 246 and 247(a); maximum penalty imprisonment not exceeding 7 years.

2      Whichman v R [2018] NZCA 519.

[7]                 Accordingly, the appeal is allowed. I note that the appellant was sentenced to 50 hours’ community work and served that sentence. Accordingly no issue arises with respect to sentence on the substituted offence.

Duffy J