Pradhan v Police

[2018] NZHC 2966

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-236

[2018] NZHC 2966

BETWEEN

KUNAL PRADHAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	29 October 2018
Counsel:	D Dickinson for Appellant S Teppett for Respondent
Judgment:	15 November 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 15 November 2018 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Meredith Connell, Auckland

PRADHAN v POLICE [2018] NZHC 2966 [15 November 2018]

[1]                 Mr Pradhan pleaded guilty to one charge of attempting to make an intimate visual recording of another person. He now appeals against a decision refusing to discharge him without conviction.1

Facts

[2]                 Mr Pradhan went into a Farmers store. He placed his phone into a sports bag with the camera pointing up and the zip open. He moved behind a woman and attempted to record a video up her skirt. He failed. The victim did not notice him doing this. However, store security noticed Mr Pradhan and reported him to the police. CCTV images of Mr Pradhan were posted on social media by the police. Mr Pradhan noticed this and handed himself in.

[3]                 Judge de Ridder found that the offending was a “moderately serious type of offending.”2 He said it was a “completely intrusive attempt to make intimate recordings of females” and that it was “quite deliberate, planned and premeditated offending”. He nonetheless considered the absence of prior offending and the steps taken by Mr Pradhan to rehabilitate and accept responsibility were powerful mitigating factors.

[4]                 As to consequences, the Judge said there was no material before the Court as to how an employer might react to the conviction, and concluded that the risk of loss of employment was therefore no more than “a possibility which is not in any way defined or structured … by how an employer might approach such a matter”.3 He referred to an offer of employment tabled by Mr Pradhan and said, “it is far from clear that a real and appreciable risk exists of this offer being immediately withdrawn if you were convicted on this charge.”4 He also observed that this was “not a case where it could be said to be a real and appreciable risk that there would be a barrier put up in each and every application you might seek to make for employment of a related nature if a conviction were to be entered.”5

1      Initially there was also an appeal against the decision to refuse name suppression. That was withdrawn at the hearing before me.

2      Police v Pradhan [2018] NZDC 15252 at [8].

3 At [12].

4 At [13].

5 At [14].

[5]                 The Judge thus concluded that there was a chance that Mr Pradhan might not be able to gain employment, but he could not put it much higher than that. Mr Pradhan fell short of showing a real and appreciable risk of his employment being permanently affected, and therefore his financial situation being dramatically affected.

[6]                 Turning to the s 107 test, the Judge balanced what he considered was reasonably serious/moderately serious offending against consequences which were far from clear. He concluded the consequences were not out of all proportion to the offending, and dismissed the application.

Grounds of appeal

[7]The following grounds of appeal are alleged:

(a)The Judge overstated the gravity of the offending;

(b)The Judge understated the consequences of a conviction and the likelihood of those consequences; and

(c)As a result, the Judge erred in his application of s 107 of the Sentencing Act 2002.

Jurisdiction

[8]                 It is common ground that the threshold test for the appeal is whether a miscarriage of justice has occurred. There will be a miscarriage if there is a material error. The scope of s 107 is in issue. In this regard, the Court of Appeal recently stated in R v Taulapapa:6

[22]      It is settled law that a court considering a discharge should: examine the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender; identify the direct and indirect consequences of conviction; and consider whether those consequences are “out of all proportion” to the gravity of the offence. Only then does it move to considering the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen: this standard recognises that the court is assessing the likelihood of something that may happen in the future.

6      R v Taulapapa [2018] NZCA 414.

[23]      The offender should ordinarily put information before the court to provide a factual basis for a decision that the test has been satisfied. There is no legal onus on the offender to do so however, and the standard of proof in s 107 is simply that the judge be satisfied that the requirements of the section are met.

(Footnotes omitted.)

The argument

[9]Mr Dickinson submits (in summary):

(a)Judge de Ridder erred in concluding that the gravity of the offending was “reasonably serious/moderately serious”;

(b)This was a victimless crime; and

(c)The Judge should have placed greater weight on the mitigating factors, such as remorse and the rehabilitative steps Mr Pradhan has taken to acknowledge and address the underlying causes of the offending.

[10]              Mr Teppett responds that the Judge made no material error. He says the Judge correctly considered Mr Pradhan’s rehabilitation and remorse as mitigating factors when assessing the gravity of his offending. He also submits it was available to the Judge to conclude the offending was premeditated, and to weigh this important feature against those mitigating factors. He also submits that this is not a victimless crime and the Judge correctly characterised the offending as an intrusive attempt.

Assessment

[11]              I agree with Mr Dickinson that the Judge’s final assessment of the offending as “reasonably serious” and/or “moderately serious” mischaracterises the gravity of the offending for the s 107 assessment. Like indecent assaults, the Courts must take this type of offending seriously, but the charge does not automatically fall into a separate “serious” category for discharge purposes.7 Each case must be assessed on its own facts.8

7      In relation to indecent assaults, see Edwards v R [2015] NZCA 583 at [9].

8 At [9].

[12]              In the present case, the key aggravating factors highlighted by the Judge inhere in offending of this kind; that is, a premeditated attempt at an unauthorised intimate video recording. It may be that a truly spontaneous decision to make an unauthorised intimate recording is less serious. But even a spontaneous video will require a level of basic planning akin to that present in this case. Second, the offending was an isolated, unsophisticated attempt that realistically could only have achieved a video of short and likely fleeting duration. Third, there is no suggestion that Mr Pradhan specifically targeted, identified, or sought to identify the intended victim.

[13]              Fourth, as the Judge noted, there were also powerful mitigating factors, including Mr Pradhan’s otherwise very good character, the steps he has taken to address the underlying causes of his offending, his deep remorse, and his acceptance of responsibility for what he has done. More specifically:

(a)Mr Pradhan handed himself in to the police after seeing the CCTV footage of himself;

(b)He entered a guilty plea at the first available opportunity;

(c)He has signalled a willingness to engage in restorative justice should the victim be identified;

(d)He has, through his church, arranged a mentor and “accountability partner” to whom he now reports weekly; and

(e)He has also undertaken professional counselling sessions at Vision West, a community trust.

[14]              This substantially reduces the gravity of his offending for s 107 purposes. In combination, the unsophisticated, isolated and brief nature of the attempted videoing and Mr Pradhan’s personal mitigating factors, mean that the gravity of the offending properly sits at the lower end of the spectrum.

[15]              Turning then to the consequences of offending, the Court of Appeal’s recent decision in R v Taulapapa also helpfully sets out a range of cases where discharge

without conviction has been deployed. One case type particularly resonates here, namely cases where the social stigma attached to the conviction is such that employers may be unwilling to look behind the conviction.9 The risk is that the conviction would not fairly reflect the offender’s character or culpability. In my view, this case, involving indecency offending that might span a very broad range of scenarios, squarely falls into this category.

[16]               A similar conclusion was reached by the Court of Appeal in Brown v R, where there was independent evidence about the ability of a person with an assault conviction to obtain employment in the IT sector (Mr Pradhan’s chosen field of employment). In that case a taxi driver faced conviction for assault, after he had touched the thigh of a female passenger as she exited his taxi. The Court noted:10

We should also add that because, on the evidence before us, employers would not look beyond the fact of a conviction to ascertain the appellant’s culpability, this is not a situation where discharge without conviction is likely to deprive employers of information that they should otherwise have. As we have said this offending was at the lowest end of the scale, was out of character and is highly unlikely that the appellant would ever offend again.

[17]              While a common assault conviction is different in nature from the present offending, it is reasonable to infer that a conviction for making an intimate video recording may well attract a similar, pre-emptive response from employers in the IT industry. In this regard, Mr Dickinson advised that Mr Pradhan in fact lost his present employment in the days after conviction was entered. There is some speculation however as to whether the conviction contributed to the termination of employment, because Mr Pradhan was already subject to a redundancy offer.

[18]              Finally, it is necessary to consider the potential impact on Mr Pradhan and his family of an incapacity to obtain employment in his chosen field. The undisputed evidence is that he and his wife are not currently able to meet their monthly living costs. I am also advised that Mr Pradhan and his wife immigrated to New Zealand in 2009. While they are now New Zealand citizens, his parents recently immigrated here under their sponsorship. The immigration implications of conviction were not explored with me so I say nothing about them. But, with the added burden of his

9      R v Taulapapa, above n 6, at [42](b).

10     Brown v R [2012] NZCA 197 at [32].

sponsorship of his parents, the consequences of conviction for Mr Pradhan could be very significant.

[19]              In the result, therefore, while I agree with Judge de Ridder’s expression of concern about offending of this nature, and accept that it is not a victimless crime, overall its seriousness, having regard to Mr Pradhan’s mitigating features, is low. Given the real and appreciable risk the conviction will pre-empt full consideration by prospective employers of any employment application by Mr Pradhan, and his already parlous financial circumstances, I am satisfied the consequences of conviction are out of all proportion to the offending – that is, an isolated, untargeted, unsophisticated, and fleeting attempt at an intimate video recording.

[20]              For completeness, I acknowledge the observation made by the Court of Appeal in Edwards to the effect that the seriousness of the consequences of an indecent assault conviction on employment prospects cannot be assumed.11 But I have based my judgment on Mr Pradhan’s circumstances, including his chosen field of employment and the nature of the conviction. In this regard I should be clear, had the attempt succeeded or had the mitigating factors been any less substantial, discharge without conviction would not have been available to Mr Pradhan.

[21]              In those circumstances, I allow the appeal and discharge Mr Pradhan without conviction.

11     Edwards v R, above n 7, at [18].