Pillay v Police - [2012] NZHC 3197

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-459 [2012] NZHC 3197

BETWEEN KRIOSHIN PILLAY Appellant

ANDTHE POLICE Respondent

Hearing: 20 November 2012

Appearances: A A Rasheed for appellant
J Wall for respondent

Judgment: 4 December 2012

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of pm on Tuesday 4 December 2012

Solicitors:
Auckland Defence Chambers aarif@defence.co.nz
Crown Solicitor Auckland justin.wall@meredithconnell.co.nz

PILLAY V POLICE HC AK CRI-2011-404-459 [4 December 2012]

Introduction

[1] On 14 June 2010, the appellant was charged with wilfully committing an indecent act in a place to which the public have access, namely the Farmers store at Manukau.

[2] On 30 November 2011, after a trial before a Judge alone, the appellant was found guilty by Judge McElrea and was immediately sentenced to 200 hours community work, and directed to pay Court costs. He has served that sentence.[1]

[1] Police v Pillay HC Manukau CRI-2010-092-6765, 30 November 2011

[3] The appellant initially appealed against his conviction on the ground that the Judge had misinterpreted the evidence, and that he had wrongfully refused an adjournment to enable the appellant’s doctor to give evidence on his behalf. Those grounds have been abandoned, but the appellant maintains his appeal against conviction and sentence in order to support an argument that he ought to be discharged without conviction, pursuant to s 106 of the Sentencing Act 2002, a contention that was not raised in the District Court.

Factual background – the offence

[4] Mr Pillay was in the Farmers store at Manukau, near displays of men’s and women’s clothing. He was seen by security officers, who were monitoring CCTV displays, to reach inside his shirt and to engage in what appeared to be masturbation by rubbing himself in the region of his genitals. It was not claimed that the appellant had indecently exposed himself.

[5] The security officers called the police who apprehended the appellant. The police officer who gave evidence before the learned District Court Judge said she asked him what he had been doing. The appellant said he had received a dirty text message from a friend and had become aroused to the point at which he had engaged
in masturbation inside his clothing.

[6] At trial, Mr Pillay claimed he had not been masturbating at all, but instead had been scratching himself, as he had an eczema condition which became very itchy. The Judge rejected that explanation and indeed anything else said by the appellant that was not consistent with the police case. The Judge thought the appellant to be an untruthful witness.

Further evidence on appeal

[7] On behalf of the appellant at the hearing of the appeal, Mr Rasheed applied for an order directing that the evidence of Dr Sean Sullivan be received. Dr Sullivan was in attendance in order to give oral evidence if an order was made. He is an experienced registered psychologist. He had interviewed the appellant in July…

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 Pillay v Police

Details

AGLC: Pillay v Police [2012] NZHC 3197
Case: [2012] NZHC 3197
Decision Date: 4 December 2012

CaseChat Overview and Summary

Pillay v Police involves an appeal by the appellant against his conviction and sentence for committing an indecent act in a public place. The case was heard in the High Court of New Zealand, Auckland Registry. The appellant, Pillay, was found guilty by Judge McElrea after a trial and was sentenced to 200 hours of community work and ordered to pay court costs. Pillay appealed against his conviction on the grounds that the Judge misinterpreted the evidence and wrongfully refused an adjournment to allow his doctor to give evidence. These grounds have since been abandoned, but Pillay maintains his appeal to argue that he ought to be discharged without conviction under Section 106 of the Sentencing Act 2002. The court heard evidence from Dr. Sean Sullivan, a psychologist, who testified that Pillay had displayed schizophrenic symptoms and was under management and on medication for the condition.

The court examined the principles governing discharge without conviction under Sections 106 and 107 of the Sentencing Act 2002. Section 106 allows the court to discharge an offender without conviction unless a minimum sentence is required by law. Section 107 stipulates that the court must not discharge an offender without conviction unless it is satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence. The court found that Pillay's offending, while not highly serious, was not minor either, as there was a risk he could have been seen by members of the public. The court also considered the consequences of the conviction, including Pillay's employment prospects and other existing convictions, and concluded that the consequences of the conviction were not out of proportion to the gravity of the offence.

The court dismissed Pillay's appeal, holding that the consequences of his conviction would not be out of all proportion to the gravity of the offending. The appeal was dismissed, and Pillay's conviction and sentence remained in place.

Orders