Nag v Police
[2024] NZHC 3521
•22 November 2024
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 could kiss her on the lips. He said she would not get in trouble if she did. The victim reiterated that she was only 10 years old, to which Mr Nag replied, “I want to go down and kiss your nipples”.
3 See Lundy v R [2013] UKPC 28, [2014] 2 NZLR 277 at [120]; and Mark v R [2019] NZCA 121
at [16].
[7] The victim then asked Mr Nag multiple times to stop messaging her. He continued to message her to apologise, tried to call her and told her to delete their conversation. Disgusted and scared by the remarks, the victim immediately told her mother about the exchange with Mr Nag.
[8] Mr Nag admitted to the facts described here, but claimed that he was intoxicated at the time he was messaging the victim.
Mr Nag’s subsequent conduct
[9] After the offending, Mr Nag made contact with the victim’s family to apologise. He admitted the offending when interviewed by Police and he offered to participate in restorative justice. In the two years between the offending and his sentencing, Mr Nag underwent counselling. General counselling was supplemented by counselling targeted at the offending through WellStop. He had ten sessions with WellStop, and his clinician said that they had been positive. In particular, his clinician said that Mr Nag’s “reliability, intelligence, honesty and determination to show greater respect to himself and others, with better choices, ensure all sessions were meaningful and supportive”.
[10] From the material provided to the Court, it is clear that Mr Nag is remorseful and feels a deep sense of shame for what he has done and that he has taken proactive steps to address the offending. As Community Corrections noted in its pre-sentence report, Mr Nag has made positive changes, having developed insight into his thoughts and patterns and so has mitigated any risk of reoffending.
Impact on the victim
[11] However, Mr Nag’s positive steps do not repair the significant harm he has caused to the victim. In the victim impact statement, the victim’s mother has noted that the offending has “left an [imprint] in her life that was not welcomed.” The victim now has an increased fear of older men, which can be troubling given that she is still in school and needs to face older male teachers. Her mother has described needing to pick the victim up from school one day — the victim was having a panic attack as her relief teacher was an Indian man, as Mr Nag is. The victim has been unable to attend
after school care programmes and extra-curricular activities because of her increased levels of fear.
Consequences of Mr Nag’s conviction
[12] Mr Nag works in a senior managerial role in a science department at a tertiary institution. He has said in his updating affidavit that he manages a team of scientists who undertake work that is funded by commercial organisations. Because of the nature of the work, personal relationships and scientific expertise are, it is said, a part of the role. To ensure that he stays educated in his chosen field, and keeps up to date with developing research, Mr Nag attends conferences and workshops overseas. He usually travels with delegates of other associated organisations. After his conviction was entered, Mr Nag travelled with a delegation to Australia. He said that, while other members of his delegation went through customs seamlessly, he was detained and questioned extensively for over an hour because of his conviction. This, he said, caused significant embarrassment, led to other members of his delegation being suspicious, and caused him to be distracted while he was away.
[13] His employer was aware of the offending before the conviction was entered and is now aware of the conviction. Mr Nag remains in his employment, but he will now need to be vetted by Police each year. He has said that vetting has not occurred since his conviction but he is relatively certain that Police vetting will negatively impact his job. He has said the nature of his work is high-profile. He is worried that, if he does not receive a discharge without conviction, it may have flow on effects for his team and on the work they are doing.
[14] Mr Nag has expressed concern that, if the conviction impacts his job, he will not be able to progress his career further and his family will be impacted. If he loses his job, he believes that he will no longer be able to provide for his family and that it will be harder to secure subsequent job opportunities, as he will need to disclose his conviction.
[15] Finally, Mr Nag has observed how in his view other aspects of his life will be impacted negatively. He has referred to obtaining insurance or finance, travelling, being a director of a company and being involved in school or charity-based activities.
The decision under appeal
[16] Judge Marinovich assessed the gravity Mr Nag’s offending as being low to moderate.4 The Judge considered the offending itself was aggravated by the significant degree of premeditation, the breach of trust, the impact on the victim, and the persistence and sexual nature of the communication.5 The Judge said the offending alone would be moderate to serious, but that the gravity was mitigated by Mr Nag’s personal mitigating factors:6 clear remorse; previous good character — evidenced by having no prior convictions; and the rehabilitative steps he had taken to address his behaviour.7 In considering the rehabilitative steps Mr Nag had taken, the Judge referred to Mr Nag having said that alcohol was the main contributor. However, the Judge said that he saw this as an excuse, rather than as enabling an understanding as to why Mr Nag was sexually interested in a 10-year-old girl.8
[17] The Judge assessed the potential consequences of a conviction as low to moderate and not being out of all proportion with the gravity of the offending.9 The Judge considered, in particular, the effect on Mr Nag’s employment as neutral, as his employer knew about the offending before conviction was entered.10 He accepted that any future job prospects may be hindered by disclosing a conviction.11 Finally, he said that the other personal consequences were in the nature of general consequences that most people face when they are convicted and , therefore, did not place much weight upon them.12
Legal principles
Approach to appeal
[18] An appeal against the refusal to grant a discharge without conviction is a composite appeal against a conviction and sentence. However, as the Court of Appeal
4 Police v Nag, above n 2, at [22].
5 At [15]–[18].
6 At [19].
7 At [21].
8 At [21(c)].
9 At [27] and [28]–[29].
10 At [25(a)].
11 At [25(b)].
12 At [25(c)].
in Jackson v R said, the decision to enter the conviction is the principal focus.13 Therefore, the appeal proceeds by way of rehearing, on the basis that the appellate court comes to its own decision on the merits, but the appellant still bears the onus of satisfying the appellate court that the decision was wrong.
[19]The Court of Appeal in Gault v R said:14
[9] The principled basis for determining an appeal against a discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction, or alternatively a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act.
Discharges without conviction
[20] Sections 106 and 107 of the Sentencing Act 2002 are the statutory gateway to a discharge without conviction. They provide:
106Discharge without conviction
(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2)A discharge under this section is deemed to be an acquittal.
…
107Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[21] The approach to a discharge without conviction application is well-settled. A court, in applying the s 107 factors, will, first, examine the gravity of the offence, taking into account all aggravating and mitigating factors of the offending and the offender. Secondly, it will identify the direct and indirect consequences of conviction. The risks of the consequences occurring must be “real and appreciable”. Thirdly, it
13 Jackson v R [2016] NZCA 627 at [15]–[16].
14 Gaunt v Police [2017] NZCA 590.
will consider whether the consequences are “out of all proportion to the gravity of the offence”. Only then will the court consider the exercise of its discretion under s 106.15
Position of the parties
Mr Nag’s position
[22] It is said for Mr Nag that the Judge erred in his assessment of the gravity of the offending. He should, it is said, have assessed the gravity as sitting at a much lower level. Mr Waugh submitted there are no aggravating factors apart from those inherent in the charge itself. The offending is described as being opportunistic, fleeting and on the lowest peg of a seriousness ladder.
[23] By way of contrast, it is said the direct and indirect consequences of the conviction are high. Reliance is placed upon information contained in Mr Nag’s affidavit in this Court. Emphasis is placed upon Mr Nag’s shame and his embarrassment and on the way in which those things impact upon his ability to perform his job. That, in turn, is said to give rise to significant effects for him. The periodic Police vetting is seen as a particular problem. Mr Nag is described as working in a niche area and as having spent significant time in obtaining qualifications for it. An impact on his career is likely, Mr Waugh has said, to have a significant impact upon his family and upon many other aspects of his life, such as those described in
[15] above.
[24] The consequences, it is said, will be out of all proportion to the gravity of the offending. Mr Waugh has described them as being catastrophic.
The position of the Police
[25] The position of the Police is that the Judge was correct in his assessment of the gravity of the offending. Ms Kearney has described the offending as being one-off but, nonetheless, as being persistent and escalating in nature such as to show premeditated rather than opportunistic offending. It is said the victim was particularly
15 Taulapapa [2018] NZCA 414 at [22] citing Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR
142 at [27].
vulnerable because of her age at the time of the offending and because of the inherent breach of trust on Mr Nag’s part in the sense that he used his connection to the victim
— through the fact his wife worked with the victim’s mother — to his advantage.
[26] Mr Nag’s employer, it is said, knows of the offending already and it is not a function of the Court to pre-empt any decision his employer might make about his suitability. Possible consequences in the workplace must, it is said, yield to an employer’s right to know. In addition, it is said that Police would need to disclose discharges without conviction in any vetting check in any event. Any adverse employment outcome as a result of a Police vetting check is described as being a consequence of the offending, rather than of the conviction.
[27] It is emphasised for the Police that a conviction will usually carry an element of social stigma and that, even accepting the adverse impacts that may well occur in Mr Nag’s employment, the consequences are not seen as being out of all proportion to the gravity of the offending.
Discussion
[28] I do not see that the Judge made any error in refusing to grant a discharge without conviction.
[29] I look first at the gravity of the offending. Under this head, the Judge did refer to the sexual nature of the communication. That might properly be characterised as an element of the offence. However, in referring to it I do not see the Judge’s assessment of the gravity of the offending as being wrong. In any event, the victim’s vulnerability is a matter that can properly be added to the gravity assessment. It is not a factor that the Judge took into account.
[30] The victim was 10 years old. Mr Nag was 37. Vulnerability arises, not just because of the victim’s age but because of the age gap.16 It cannot, in my view, be
16 This factor is still seen as an aggravating factor, despite the age of the young person being an element of the offence. This can be seen by other cases which have seen this as an aggravating factor in different sexual and indecency offences against young people: see Law v R [2024] NZHC 1849 at [36]; Nevin v R [2023] NZCA 378 at [87]; and Houston v R [2024] NZHC 938 at [38(e)].
said, as is suggested for Mr Nag, that there is nothing to suggest that the victim was particularly vulnerable. And I cannot for a moment accept the explanation that Mr Nag may have thought that the victim was a 20-year-old woman, who may have known his wife. The summary of facts, to which Mr Nag pleaded guilty, refers to him knowing the victim. And, as Mr Nag accepts, he was told by the victim during their exchange of messages that she was 10 years old and attended primary school. The most disturbing communications on Mr Nag’s part came after she had told him this. At about this point in the exchange of messages, Mr Nag referred to the fact that what he was suggesting was illegal, but he continued to escalate the conversation. Gravity, as described in the District Court, is certainly made out.
[31] Moreover, it cannot properly be said that the Judge gave excessive weight to the harm caused to the victim. The victim impact statement may be short, but it is poignant. Mr Nag’s communications have been traumatising for the victim. She suffers harm two years on.
[32] The Judge found the offending on its own to be moderate to serious. When he applied appropriate mitigating factors — factors personal to Mr Nag — he assessed the gravity as being low to moderate. That, in the circumstances I have described, is an assessment that was open to him to make.
[33] I do not believe that the Judge erred in his assessment of the consequences either. I see the impact that a conviction will have on Mr Nag’s employment as being a neutral factor. The further information that Mr Nag has provided in his affidavit in this Court is relevant, but it does not change that assessment.
[34] I do not see Police vetting checks as being able to be characterised as a consequence of a conviction. They are consequences of the offending because, in responding to a vetting check, Police will need to disclose a discharge without conviction.17 In addition, Mr Nag’s current employer knows already what will be revealed through the check because it knows about the offending.18
17 Irvine v Police [2024] NZHC 1231 at [25].
18 In this way, Mr Nag’s conduct will already be taken into account by the employer when assessing his future with the organisation: Chowdhery v Police [2021] NZHC 1061 at [47].
[35] Mr Nag’s employment contract, and other relevant employment policies, do not support the argument that his conviction will result in a loss of his employment. The definitions of “misconduct” and “serious misconduct” do not involve offending of this nature. The impact on employment of a conviction is a natural consequence and there is nothing in Mr Nag’s case, as I see it, that would warrant the consequence to be elevated. It is acknowledged that he is involved in a specialised area and that he is well-regarded in the work that he does. But that does not change the assessment.
[36] To a similar end, the fact that, when he last travelled for work, he was embarrassed by his detainment at the border, is part and parcel of the deterrence function of a conviction.
[37] Mr Nag will in any event have the benefit of a clean slate, if he does not reoffend within the next seven years, under the Criminal Records (Clean Slate) Act 2004. Any detrimental consequences will, accordingly, be relatively short-lived.
[38] The consequences for Mr Nag’s family and on the other aspects of his life that are described in [15] above, are no more than would be expected from a conviction of this kind. The consequences mentioned there are in any event presented in a way that is general and somewhat vague and it would not be appropriate to place much weight upon them.19 One of the consequences, for example, is said to be an adverse impact upon his ability to undertake school activities. But his son is an adult who is undertaking tertiary study. These are not factors that I can bring to bear in the equation.
[39] I see the Judge’s assessment of the consequences as “low to moderate” as being available to him. My own view is that the consequences are, simply, low. It follows that I could not describe the consequences being out of all proportion with the gravity of the offending. Accordingly, the Judge made no error in declining to grant Mr Nag’s application for a discharge without conviction.
19 Wardley v Police [2021] NZHC 1026 at [43].
Result
[40]The appeal is dismissed.
Radich J
Solicitors:
Crowley Waugh, Whanganui for Appellant Crown Solicitor, Whanganui for Respondent
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