R v Bubna - [2023] NZHC 158

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-018-632

[2023] NZHC 158

THE KING

v

NEHA BUBNA

Hearing: 9 February 2023

Appearances:

A M Toohey and S J O’Brien for Crown

V J Feyen for Defendant

Judgment:

9 February 2023

SENTENCING NOTES OF OSBORNE J

Introduction

[1] Ms Bubna, I am going to ask you to stand please. Neha Bubna, you appear for sentence on a charge of obtaining by deception. You pleaded guilty to that charge in October 2022, shortly before the commencement of your trial with the co-defendants. The charge arose because, with others, you were involved in arrangements to deceive the Westland District Council in order to enable a company you had established to obtain a contract to upgrade Council water treatment facilities.

[2] As counsel have mentioned, I provided you with a sentence indication on 3 October 2022, following which you entered your guilty plea. In response to the submissions received, I found that a sentence of 24 months’ imprisonment was indicated and that you would be eligible for a sentence of home detention should you

THE KING v BUBNA [2023] NZHC 158 [9 February 2023]

have a suitable address for that purpose. I will be attaching to the typed version of these remarks my Sentencing Indication. The Department of Corrections reports that you do have a suitable address for an electronically monitored sentence. As a result, this sentencing hearing would normally focus on the length of your detention.

[3] However, you have in the meantime applied for an order that you be discharged without conviction. As you have heard, I therefore have now received submissions both in relation to the possibility of a discharge without conviction and as to a period of detention.

[4] I am shortly going to ask you to sit again while I explain the decision I am reaching. Should you be discharged without conviction or should you be convicted and subject to a period of home detention? My explanation will take some time and I will indicate to you towards the end when you need to stand again.

[5]So, please be seated for now.

The charge

[6] The charge was brought under ss 240(1)(a) and 240(2)(b) Crimes Act 1961. Because the value of the contract was $459,000 plus GST, the charge carries a maximum term of imprisonment of seven years.1

Your offending

[7] Through counsel, at your sentence indication hearing, you accepted facts as set out in the summary of facts. I note that this morning I received a supplementary affidavit from you in which you dispute one paragraph of the summary of facts. I am going to put to one side the proposition that you were involved with what has been called the “gangayamana email account”. That particular matter does not significantly alter the overall picture.

[8] I will only briefly refer to the lengthy summary of facts which I have fully taken into account in the observations which follow. These…

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 R v Bubna

Details

AGLC: R v Bubna [2023] NZHC 158
Case: [2023] NZHC 158
Decision Date: 9 February 2023

CaseChat Overview and Summary

Neha Bubna was convicted of obtaining by deception under the Crimes Act 1961 and sentenced by Osborne J in the High Court at Christchurch. Bubna, who operated a cake-baking business in Auckland, was involved in a scheme to obtain a contract to upgrade water treatment facilities for the Westland District Council. Bubna was directed by Vivek Goel, a Council employee, to assist in maintaining the secrecy of Goel’s involvement in the tender process. Bubna’s involvement included setting up a New Zealand company, TES New Zealand, with Bubna as the sole director and shareholder. The company submitted the lowest tender and was offered the contract, which was ultimately not fulfilled. The court found Bubna’s offending to be serious, involving premeditation, abuse of a position of trust, and significant harm to the Council and other tenderers. Bubna applied for a discharge without conviction, which was denied, and was sentenced to 10 months’ home detention. The court considered mitigating factors such as Bubna’s guilty plea, good character, and efforts at rehabilitation, but ultimately found that the consequences of conviction were not disproportionate to the gravity of the offending.

Orders