Piwari v R - [2010] NZCA 19

IN THE COURT OF APPEAL OF NEW ZEALAND
CA400/2009
[2010] NZCA 19

BETWEENCHANEL AROHA PIWARI

Appellant

ANDTHE QUEEN

Respondent

CA401/2009
AND BETWEEN JANIL SINGH

Appellant

ANDTHE QUEEN

Respondent

Hearing:15 February 2010

Court:Hammond, Panckhurst and Keane JJ
Counsel:N Levy for Appellant Piwari

V C Nisbet for Appellant Singh
K A L Bicknell for Respondent

Judgment:22 February 2010 at 10 am

JUDGMENT OF THE COURT

AMs Piwari’s conviction for aggravated robbery is quashed, and a conviction for robbery substituted.
BHer sentence of seven years’ imprisonment is quashed and four and a half years’ imprisonment is substituted.
CMr Singh’s sentence of seven years’ imprisonment is quashed and six years’ imprisonment is substituted.

___________________________________________________________________
REASONS OF THE COURT
(Given by Panckhurst J)
Introduction
[1]        On 22 May 2008 a pharmacy at Hataitai in Wellington was robbed. Two males, partially disguised, entered the premises one armed with an imitation pistol. They stole cash and drugs (thought to contain pseudoephedrine) to a value of about $2,600.
[2]        The main offender, David Haddon, pleaded guilty to aggravated robbery. The appellant Janil Singh and his partner, the appellant Chanel Piwari, were convicted following a District Court trial. The jury accepted the Crown case that Mr Singh was the other principal offender and that Ms Piwari was the getaway driver.
[3]        Ms Piwari appeals against both conviction and sentence. She complains that the trial Judge both failed to adequately put the defence case to the jury and erred in declining to leave the included count of robbery to the jury in the course of their deliberations.
[4]        Both appellants appeal against sentence on the grounds that the starting-point adopted by the trial Judge was too high and that insufficient allowance was made for mitigating personal factors.
Some further background
[5]        The robbery was committed at about 6.30 pm. Some minutes earlier Ms Piwari entered the pharmacy and purchased a pair of latex gloves valued at 60 cents. She then returned to a nearby Nissan car where Messrs Haddon and Singh were waiting.
[6]        A short time later they left the car, donned partial disguises and entered the pharmacy. Mr Haddon was armed with an imitation pistol. After obtaining drugs and cash the two men left the premises and ran back to the car. Ms Piwari drove away from the area.
[7]        The owner of the pharmacy followed the offenders, observed the departure of the getaway vehicle and took a note of its registration number. Minutes later police officers sighted the Nissan car and followed it. A chase ensued. This ended when the police stopped the vehicle at a road block at one end of the Mount Victoria tunnel.
[8]        The appellants stood trial over three days commencing 29 April 2009. The indictment charged aggravated robbery on the basis that the offenders were armed with an imitation pistol. Reliance was not placed upon the circumstance that two offenders acting together entered the pharmacy.
Was the defence case for Ms Piwari adequately put to the jury?
The defence case
[9]        At…

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 Piwari v R

Details

AGLC: Piwari v R [2010] NZCA 19
Case: [2010] NZCA 19
Decision Date: 22 February 2010

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard appeals against conviction and sentence from Chanel Aroha Piwari and Janil Singh, who were convicted of aggravated robbery in the District Court. The appellants were convicted for their roles in the robbery of a pharmacy in Wellington, where they stole cash and drugs. Piwari was the getaway driver, and Singh was one of the robbers armed with an imitation pistol. Piwari appealed on the grounds that the trial judge failed to adequately put the defence case to the jury and erred in not leaving the included count of robbery to the jury. Both appellants appealed against sentence, arguing that the starting-point adopted by the trial judge was too high and that insufficient allowance was made for mitigating personal factors.

The Court of Appeal found that while the trial judge did identify and remind the jury of the two central lines of defence, he did not grapple with the evidence or defence counsel's arguments directed to the evidence. However, the Court found that the error did not result in a miscarriage of justice as the evidence was straightforward and the jury received as much assistance as they required. The Court also found that the trial judge should have left the included count of robbery to the jury, as there was an evidential foundation in support of it and no suggestion of prejudice. The failure to do so was a causative error, and the conviction for aggravated robbery was quashed and substituted with a conviction for simple robbery.

Regarding the sentence appeals, the Court found that the starting-point adopted by the trial judge was too high and that insufficient allowance was made for mitigating personal factors. The Court substituted a sentence of four and a half years' imprisonment for Piwari and six years' imprisonment for Singh, taking into account the lesser charge and personal circumstances of the appellants.

Orders