Mehrok v R

[2021] NZCA 370

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA597/2020
 [2021] NZCA 370

BETWEEN	SURENDER SINGH MEHROK Appellant
AND	THE QUEEN Respondent

Hearing:	15 June 2021
Court:	Brown, Brewer and Davison JJ
Counsel:	R J Stevens and K Hadaway for Appellant E J Hoskin for Respondent
Judgment:	6 August 2021 at 10.30 am

JUDGMENT OF THE COURT

The appeal against sentence and the imposition of a minimum period of imprisonment is dismissed.

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REASONS OF THE COURT

(Given by Brewer J)

Introduction

1. Mr  Mehrok killed a 14-week-old baby who had been left in his care for a short time.  He did so by throwing the baby with such great force that “the baby’s skull was shattered like an eggshell”.[1]  The cause of death was blunt force craniocerebral trauma.  There were skull fractures and bleeding inside the brain.  The brain matter itself was lacerated. 

   [1]R v Mehrok [2020] NZHC 2722 [Sentencing notes] at [18].

2. A jury found Mr Mehrok not guilty of the murder of the baby, but guilty of his manslaughter. 

3. On 15 October 2020, Gordon J sentenced Mr Mehrok to seven years, nine months’ imprisonment.  The Judge ordered that he serve a minimum period of imprisonment of 50 per cent of that sentence.[2]

   [2]Sentencing notes, above n 1, at [62].

4. Mr Mehrok now appeals his sentence.  He says it is manifestly excessive, and that it is wrong in principle for him to be subject to a minimum period of imprisonment.

5. Our task is to decide whether there is an error in the sentence imposed on Mr Mehrok such that a different sentence should be imposed.

Grounds of Appeal

1. There are seven grounds of appeal relating to the sentence.  They are set out in Mr Stevens’s written submissions, and suggest that Gordon J:

   a)        Failed to correctly identify the factual basis for sentencing;

   b)        Adopted too high a starting point;

   c) Inappropriately uplifted the starting point as a result of Mr Mehrok’s previous convictions;

   d)        Failed to give sufficient credit for the offer to plead guilty;

   e)        Failed to give sufficient credit for youth;

   f)         Failed to give any credit for the steps taken to shorten the proceedings;

   g)        Failed to give sufficient credit for personal circumstances.

2. There is a further ground of appeal to the effect that the Judge erred in imposing a minimum period of imprisonment. 

Discussion

The factual basis for sentencing

1. The defence case at trial was that Mr Mehrok killed the baby by throwing him into a bedroom wall during a momentary loss of self-control.  The defence placed reliance on the evidence of a five-year-old boy, T, who was in the house at the time.

2. The Crown’s case was that there were at least two significant blows or impacts to the baby’s head.

3. Justice Gordon was well aware of the difference between the two cases.  It was the subject of submission at sentencing.  The Judge said:

   [17]     However, in the end, I consider it is not necessary to make findings…