Keshwan v The Queen - [2012] NZCA 171

IN THE COURT OF APPEAL OF NEW ZEALAND

CA808/2011

[2012] NZCA 171

BETWEEN KRISHAN KESHWAN
Appellant

AND THE QUEEN
Respondent

Hearing: 27 February 2012

Court: Hammond, Priestley and Allan JJ

Counsel: B J Hart for Appellant
J M Jelas for Respondent

Judgment: 7 May 2012 at 10 am

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe sentence of two years ten months imprisonment for robbery imposed in the District Court is quashed.
CWe substitute a sentence of two years three months imprisonment on that charge.
DThe concurrent sentences imposed in the District Court will stand.

REASONS OF THE COURT

(Given by Allan J)

Mr Keshwan appeals against a sentence of two years ten months imprisonment imposed upon him on 10 November 2011 in the Auckland District Court by Judge David Harvey.[1] The appellant had pleaded guilty to one count of robbery, three counts of theft, and one count of dangerous driving. The Judge imposed a sentence of two years ten months imprisonment on the robbery charge, and concurrent sentences of one months imprisonment on the remaining charges. He was also disqualified from holding or obtaining any motor vehicle driver’s licence for six months on the dangerous driving charge.
[1] R v Keshwan DC Auckland CRI-2009-004-1153, 10 November 2011.
The principal ground of appeal is that insufficient attention was given at sentencing to the appellant’s mental state, and in particular to his on-going problems with depression. That is perhaps hardly surprising given that the issue received very little, if any, attention in counsel’s submissions to the District Court. Moreover, there is only limited reference to depression in the pre-sentence report.
Mr Hart submits that the overall sentence was in any event manifestly excessive, that an end sentence of two years imprisonment or less was appropriate, and that a sentence of home detention ought to have been imposed in substitution for a full time custodial penalty.

Factual background

The robbery occurred at about midday on 24 December 2008. Mr Keshwan drove to the Kiwibank Post Shop in Mt Roskill and approached the lone teller with his hands in the pockets of his hooded sweatshirt. Earlier that day, he had entered two other banks but had lost his resolve. In the Post Shop, the appellant passed a note to the teller on a National Bank deposit slip which he had previously obtained that morning. The note read “Give me all the money or I will shoot”. The appellant carried no weapon.
In consequence, the teller handed Mr Keshwan $726 with which he left the bank. He was seen to drive off in a Toyota Hiace van, but was located and interviewed later in the day. Initially he denied the offence, but later accepted responsibility.
The dangerous driving incident occurred about eight months later when Mr Keshwan was on bail. At about 10 am on 22 August 2009, when driving in Onehunga, he became involved in an altercation with another driver, following which he drove at about 100 kph through an intersection…

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 Keshwan v The Queen

Details

AGLC: Keshwan v The Queen [2012] NZCA 171
Case: [2012] NZCA 171
Decision Date: 7 May 2012

CaseChat Overview and Summary

In Keshwan v The Queen, the appellant, Krishan Keshwan, challenged the sentence imposed on him by the Auckland District Court. Keshwan had pleaded guilty to one count of robbery, three counts of theft, and one count of dangerous driving. The District Court Judge, David Harvey, sentenced Keshwan to two years and ten months imprisonment for the robbery charge, and concurrent sentences of one month imprisonment for the remaining charges. The primary ground of appeal was that insufficient attention was given to Keshwan's mental state, particularly his ongoing problems with depression, during the sentencing process. The Court of Appeal accepted the appeal, quashing the original sentence and substituting a sentence of two years and three months imprisonment on the robbery charge, while leaving the concurrent sentences intact.

The Court of Appeal admitted a forensic psychiatrist's report that was not available to the sentencing Judge, considering the interests of justice and the appellant's diminished culpability due to his depression. The Court acknowledged that the appellant's depressive illness, along with financial and personal pressures, played a significant role in his offending. The Court concluded that a 15% discount was warranted for the appellant's depressive illness, and a 10% discount for his guilty plea, resulting in a final sentence of two years and three months imprisonment. The Court of Appeal distinguished this case from earlier decisions by emphasising the need to differentiate between personal mitigating factors and mental health grounds when assessing moral culpability.

Orders