Nand v The Queen - [2011] NZCA 566

IN THE COURT OF APPEAL OF NEW ZEALAND

CA441/2011
[2011] NZCA 566

BETWEEN VISHAL NAND
Appellant

AND THE QUEEN
Respondent

Hearing: 3 November 2011

Court: Harrison, Miller and Asher JJ

Counsel: T M Saseve for Appellant
M J Lillico for Respondent

Judgment: 8 November 2011 at 3.30 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

B The sentence of two years’ imprisonment is quashed and substituted by a sentence of 18 months’ imprisonment.
CThe other orders made against Mr Nand in the District Court are not affected by this decision

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REASONS OF THE COURT

(Given by Asher J)

Introduction

Vishal Nand appeals against a sentence of two years’ imprisonment imposed upon him by Judge Winter for charges of injuring with intent to injure and threatening to do grievous bodily harm.[1]
[1] R v Nand DC Manukau CRI-2010-092-7033, 15 April 2011.
Mr Nand had lived with the complainant Ms X, with whom he had been in a relationship for approximately five years. They had both signed the tenancy agreement for their rented home. But their relationship was dissolving. Some three days prior to the incident that led to the charges they had commenced the process of separation. They had a four month old child and on Monday, 29 March 2010 Mr Nand had been at their home. He had gone out and on his return had found there to be other cars at the address and people inside. Mr Nand became concerned that Ms X was forming a relationship with another man Mr A. He decided to confront Ms X and those inside.
Mr Nand returned to the address with a gas-powered air pistol and two associates whom he had asked to support him. He went to the front door and knocked. When the door was opened and then shut on him, he smashed his way through the door. With his two associates he entered the home. He and his associates proceeded to pursue Mr A. In an attempt to protect himself Mr A climbed under a bed to hide. Mr Nand, in extricating Mr A from under the bed, pulled his hair. He kicked and punched him around the head and body.
One of Mr Nand’s associates then forcefully took Mr A’s car keys from his pocket, together with his cellphone. Ultimately that associate drove the vehicle away and damaged it. Meanwhile Mr Nand had approached Ms X. He pointed the gas-powered air pistol at her and said “I will fuck you up”. He demanded that she tell him who the men in the house were.
After being convinced that the men in the house were not in a relationship with Ms X the offenders left the address leaving Ms X crying and another male who was in the house distressed. Mr A was admitted to hospital and his injuries were found to include bruising to his head, legs and arms as well as several small cuts to his head. His injuries were not in the end…

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 Nand v The Queen

Details

AGLC: Nand v The Queen [2011] NZCA 566
Case: [2011] NZCA 566
Decision Date: 8 November 2011

CaseChat Overview and Summary

Vishal Nand appeals against the two-year imprisonment sentence imposed by Judge Winter for charges of injuring with intent to injure and threatening to do grievous bodily harm. Nand had been in a relationship with the complainant, Ms X, and they shared a rental property. However, their relationship was ending, and Nand was concerned that Ms X was forming a relationship with another man, Mr A. Nand, with the support of two associates, confronted Ms X and the others at their home, resulting in a physical altercation with Mr A and a threat towards Ms X with a gas-powered air pistol. Mr A sustained minor injuries, and Ms X was left distressed. The Court of Appeal found that the sentence was manifestly excessive and substituted it with a sentence of 18 months’ imprisonment.

The Court of Appeal was required to determine whether the sentence was appropriate, considering the aggravating and mitigating factors of the case. The Court assessed the starting point for the sentence, noting that the injuries inflicted were not severe and the level of violence was not excessive. The Court also considered personal mitigating factors such as Nand's youth, good character, and genuine remorse. The Court concluded that the starting point was too high, and there was inadequate recognition of mitigating factors personal to Nand.

The Court of Appeal allowed the appeal and substituted the two-year imprisonment sentence with a sentence of 18 months' imprisonment, considering the mitigating factors and the fact that Nand had already served almost seven months in prison. The other orders made against Nand in the District Court remained unaffected by this decision. The Court emphasised that if Nand's co-accused, Mr Taufa, chose to seek leave to appeal out of time, the factors relevant to sentencing might be different in his case.

Orders