Narayan v Police - [2014] NZHC 1241

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2014-485-20 [2014] NZHC 1241

BETWEEN
SHAILENDRA NARAYAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 June 2014

Counsel:

M J Baker and S R Lack for the Appellant
I M Murray for the Respondent

Judgment:

4 June 2014

JUDGMENT OF MALLON J

Introduction

[1] The appellant pleaded guilty to two charges of breaching a protection order.1

He was sentenced in the District Court to 11 months imprisonment for each breach, to be served concurrently.2 He appeals against that sentence on the grounds that it is manifestly excessive.

The offending

[2] The appellant is separated from his wife after 17 years of marriage. They have three children. The appellant is subject to a final protection order, issued on
22 October 2013, which protects his wife and their three children. On 13 January

2014 the appellant breached the protection order. On 20 January 2014 he again breached the protection order. He was convicted and sentenced in respect of each of
those breaches on 21 January 2014. In respect of the first breach he was ordered to

1 Domestic Violence Act 1995, s 49.
2 Police v Narayan DC Hutt Valley CRI-2014-096-574, 24 March 2014.

NARAYAN v POLICE [2014] NZHC 1241 [4 June 2014]

come up for sentence if called upon. In respect of the second, he was fined and ordered to pay court costs.

[3] The present offending began in the early hours of 21 February 2014. At around 3 am the appellant went to the house where his wife and children lived. The appellant woke up his wife. She answered the door. He told her he had been beaten up. He became upset about his visitation rights with their children. His wife repeatedly asked him to leave. He obtained a machete from the garden shed and told his wife that he wanted to kill himself if she would not take him back. His wife was concerned what might happen if she did not cooperate. She allowed him to stay at the address and talked to him. She managed to remove the machete from him and attempted to hide it. The appellant found the machete again and his wife managed to remove it from him and hide it once more. After some hours the appellant’s wife sent a text message to a work colleague stating that the appellant was at her house. The colleague called the police. The police called the appellant’s wife who confirmed that the appellant was there. The police arrived shortly afterwards and the appellant was arrested. He was remanded in custody following the District Court’s
decision to decline his application for bail.3

[4] The next morning the appellant’s wife received a call on her cell phone. The caller identified himself as someone from the prison and asked if she was able to take a call from the appellant. She said she was too busy to take the call. Later that afternoon she received another call on her cell…

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 Narayan v Police

Details

AGLC: Narayan v Police [2014] NZHC 1241
Case: [2014] NZHC 1241
Decision Date: 4 June 2014

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Narayan v Police was heard, involving the appellant, Shailender Narayan, who had breached a protection order. The appellant was sentenced to 11 months imprisonment for each of the two breaches, to be served concurrently, in the District Court. The appellant appealed the sentence, arguing it was manifestly excessive. The offending involved the appellant breaching a final protection order protecting his wife and their three children. The first breach occurred on 13 January 2014, and the second on 20 January 2014. The appellant breached the protection order again on 21 February 2014, arriving at his wife's house in the early hours of the morning with a machete and threatening to kill himself if his wife did not take him back. The appellant's wife was frightened and allowed him to stay at the house, leading to the police being called and the appellant being arrested. The appellant was sentenced to 11 months imprisonment for each charge, with the sentences to be served concurrently.

The court had to determine whether the starting point of 15 months imprisonment for both breaches was too high, considering the appellant's guilty plea discount and the seriousness of the offending. The court compared the appellant's case with four other cases, finding that the offending in this case was more serious, with the use of a weapon and the appellant's disregard for the protection order. The court also considered the appellant's age, limited previous convictions, work record, and supportive accommodation upon release as mitigating factors. However, the court found that the starting point of 15 months imprisonment was within the available range. The court allowed the appeal to adjust how the sentence of 11 months imprisonment was allocated, quashing the sentence on the second breach and replacing it with a sentence of two months imprisonment (concurrent), while maintaining the 11-month sentence on the first breach.

Orders