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by Mr Pradhan and said, “it is far from clear that a real and appreciable risk exists of this offer being immediately withdrawn if you were convicted on this charge.”4 He also observed that this was “not a case where it could be said to be a real and appreciable risk that there would be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…

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 Pradhan v Police

Details

AGLC: Pradhan v Police [2018] NZHC 2966
Case: [2018] NZHC 2966
Decision Date: 15 November 2018

CaseChat Overview and Summary

Mr Pradhan appeals against a decision refusing to discharge him without conviction for attempting to make an intimate visual recording of another person. The appeal was heard by Whata J in the High Court of New Zealand Auckland Registry. The legal issues before the court were whether the Judge overstated the gravity of the offending, understated the consequences of a conviction and the likelihood of those consequences, and whether the Judge erred in his application of section 107 of the Sentencing Act 2002. The appeal was allowed, and Mr Pradhan was discharged without conviction. The Judge found that the gravity of the offending was properly assessed at the lower end of the spectrum due to the unsophisticated, isolated, and brief nature of the attempted videoing, and Mr Pradhan’s personal mitigating factors. The court found that the consequences of the conviction were out of all proportion to the offending, particularly given the real and appreciable risk the conviction would pre-empt full consideration by prospective employers of any employment application by Mr Pradhan, and his already parlous financial circumstances. The court considered Mr Pradhan’s circumstances, including his chosen field of employment and the nature of the conviction, in reaching its decision.

The final orders of the court were that the appeal was allowed and Mr Pradhan was discharged without conviction. The court noted that had the attempt succeeded or had the mitigating factors been any less substantial, discharge without conviction would not have been available to Mr Pradhan.

Orders