Nag v Police - [2024] NZHC 3521

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2024-483-000012

[2024] NZHC 3521

BETWEEN
ARUP NAG

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 21 November 2024

Counsel:

J H Waugh for Appellant

A N Kearney for Respondent

Judgment:

22 November 2024

JUDGMENT OF RADICH J

Introduction

[1] Arup Nag pleaded guilty to one charge of indecent communication with a young person.1 On 28 August 2024, Mr Nag was sentenced to 12 months’ supervision and ordered to make an emotional harm reparation payment of $2,000 to the victim. At his sentencing, Mr Nag applied for a discharge without conviction. This application was declined by Judge Marinovich, who considered the consequences of the conviction were not out of all proportion with the gravity of the offending.2

[2] Mr Nag appeals from the Judge’s decision. He says that the Judge erred in his assessments of the gravity of the offending and the consequences of a conviction. He says that the Judge pitched the gravity of the offending too high and the consequences of conviction too low.

1 Crimes Act 1961, s 124A. Maximum penalty of three years’ imprisonment.
2 Police v Nag [2024] NZDC 20693.

NAG v NEW ZEALAND POLICE [2024] NZHC 3521 [22 November 2024]

Application to adduce fresh evidence

[3] Mr Waugh seeks leave to adduce an updating affirmation from Mr Nag on appeal. The updating evidence repeats information that was in his affidavit before Judge Marinovich, but it includes information about the effects the conviction has had on him. The information in the affidavit is cogent, credible and, to the extent that it contains information about the experiences of Mr Nag after a conviction was entered, it is fresh.3 Given the subject matter of the appeal, evidence of actual consequences for Mr Nag is relevant. The application is granted accordingly.

The relevant facts and circumstances

The offending

[4] At the time of the offending Mr Nag was 47 years old and the victim was 10 years old. Mr Nag knew the victim through his wife’s work supervisor.

[5] On the evening on 21 July 2022, Mr Nag sent the victim a friend request on Facebook. He then initiated a conversation with the victim on Facebook Messenger. He spoke to her about friendly matters in a nonchalant way then asked her about her age, school and home life. The victim told Mr Nag she was 10 years old and confirmed she went to primary school.

[6] Mr Nag then asked the victim to send pictures of herself, which she did. None of the pictures were objectionable. Mr Nag told the victim she had a “charming, cute look.” He asked her if she wanted a hug from him and told her to imagine him hugging her. He then began to ask the victim whether she had been kissed before. This transitioned into him talking about kissing her. He said that he was not allowed by law to kiss her but, subsequently, asked if he…

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 Nag v Police

Details

AGLC: Nag v Police [2024] NZHC 3521
Case: [2024] NZHC 3521
Decision Date: 22 November 2024

CaseChat Overview and Summary

Arup Nag appeals against the decision of Judge Marinovich, who declined to grant him a discharge without conviction for a charge of indecent communication with a young person. The High Court of New Zealand considers the appeal, focusing on whether the Judge erred in his assessment of the gravity of the offending and the consequences of a conviction. The key issues revolve around the appropriateness of the Judge's assessment of the gravity of the offence and the proportionality of the consequences of the conviction relative to the offence's gravity. Mr Nag argues that the Judge assessed the gravity of the offending too high and the consequences of the conviction too low, suggesting that the consequences of the conviction are disproportionate to the gravity of the offence. In contrast, the Police maintain that the Judge's assessment was correct, highlighting the persistent and escalating nature of the offending and the inherent vulnerability of the victim. The Court finds no error in the Judge's decision. The gravity of the offending, including the sexual nature of the communication and the victim's vulnerability, was appropriately assessed. The consequences of the conviction, including potential employment impacts, are considered to be a natural and proportionate response to the offence. The Court dismisses the appeal, affirming the Judge's decision.

Orders