Mehta v The Queen - [2017] NZCA 491

IN THE COURT OF APPEAL OF NEW ZEALAND

CA660/2016
[2017] NZCA 491

BETWEEN	VIKRAM MEHTA Appellant
AND	THE QUEEN Respondent

Hearing:	5 October 2017
Court:	Winkelmann, Wylie and Whata JJ
Counsel:	A Arman for Appellant A M McClintock and A Luck for Respondent
Judgment:	31 October 2017 at 11.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

On 28 November 2016 following a seven‑day judge‑alone trial before Judge Cunningham in the District Court at Auckland, Mr Mehta was convicted on two charges of obtaining by deception pursuant to s 240 of the Crimes Act 1961.[1] On 3 March 2017 he was sentenced by Judge Cunningham to concurrent sentences of two years’ imprisonment.[2] He appeals that sentence on the grounds that the Judge erred in refusing to grant him home detention.[3] Mr Mehta says that other offenders convicted of similar offending have been sentenced to home detention and, further, that the Judge failed to take into account a number of matters relevant to whether home detention was appropriate.

The offending

[1]R v Mehta [2016] NZDC 23773 [Conviction decision].

[2]R v Mehta [2017] NZDC 6700 [Sentencing notes].

[3]In his amended notice of appeal filed on 21 August 2017, Mr Mehta confirmed he was not pursuing an appeal against conviction (which was originally filed).

Mr Mehta was the sole director and shareholder of Flexi Buy Ltd, a mobile trader or “truck stop” business that sold electronics and other household items from door to door. The offending occurred in the period from 1 January 2013 to 28 February 2014, and related to representations made to customers by Flexi Buy salespeople inducing them to enter into credit contracts. Customers were told that Flexi Buy would deliver their goods after they had made a specified number of payments. Judge Cunningham found that Mr Mehta instructed Flexi Buy salespeople to make representations about when goods were delivered to customers, knowing those representations to be false and that the goods would not be delivered to them on time.[4]
[4]Conviction decision, above n 1, at [165].
The Judge found that many of the payments were transferred to Mr Mehta personally, who then spent the funds not on the purchase of the goods in question but on himself. She found that the company did not have the means to meet its contractual obligations to customers yet continued to represent it would deliver the goods in return for payments.
Over the charge period Flexi Buy entered into contracts with 300 to 360 customers, from whom the total amount received was at least $159,864.22. Of those customers, only nine ultimately received any goods from Flexi Buy. Two who did receive goods gave evidence at trial. Both said they only received their goods after complaining or threatening to complain about Flexi Buy or Mr Mehta to the police, Fair Go or the Commerce Commission.
Part way through the charge period, Mr Mehta went to India for a period of…

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 Mehta v The Queen

Details

AGLC: Mehta v The Queen [2017] NZCA 491
Case: [2017] NZCA 491
Decision Date: 31 October 2017 at 11.30 am

CaseChat Overview and Summary

Vikram Mehta appeals against his conviction for obtaining by deception. The appeal against his conviction was withdrawn and the appeal now concerns only the sentence. Mehta was convicted on two charges of obtaining by deception and was sentenced to two concurrent sentences of two years' imprisonment. He appeals the sentence on the grounds that the judge erred in refusing to grant him home detention. Mehta argues that other offenders convicted of similar offending have been sentenced to home detention and, further, that the judge failed to take into account a number of matters relevant to whether home detention was appropriate. Mehta was the sole director and shareholder of a mobile trader business that sold electronics and other household items from door to door. The offending related to representations made to customers by Flexi Buy salespeople, inducing them to enter into credit contracts. The customers were told that Flexi Buy would deliver their goods after they had made a specified number of payments. However, Mehta instructed Flexi Buy salespeople to make representations about when goods were delivered to customers, knowing those representations to be false and that the goods would not be delivered to them on time. The judge identified the sentencing purposes of denunciation and deterrence as important in sentencing Mehta because of the nature of the offending. The factors the judge subsequently addressed were the extent to which Mehta benefited personally from the offending, the value of the fraud, the serious impact the offending had on the victims, and the breach of trust. Taking all these aggravating features into account, the judge selected a starting point of two years' imprisonment. The judge then considered but rejected various arguments that Mehta should receive a reduction in sentence because of his personal circumstances, claims to be remorseful, and offers of reparation. The judge addressed whether to impose a sentence of home detention rather than one of imprisonment, but concluded that a sentence of imprisonment was necessary to serve the purposes of deterrence and denunciation. The appeal against sentence is dismissed.

Orders