R v Chand - [2020] NZHC 1077

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-004-5696

[2020] NZHC 1077

THE QUEEN

v

SUNIL CHAND

Hearing: 21 May 2020

Appearances:

B Dickey and R Williams for Crown A Kashyap for Defendant

Judgment:

21 May 2020

SENTENCING REMARKS OF LANG J

Solicitors:
Crown Solicitor, Auckland

R v CHAND [2020] NZHC 1077 [21 May 2020]

[1] Mr Chand, you have pleaded guilty to one charge of corruptly providing a financial gift to an agent, Mr Rasila, without the consent of his principal, the Auckland Council (the Council).1 The maximum penalty for that offence is seven years imprisonment.

[2] You applied to be discharged without conviction under s 106 of the Sentencing Act 2002 but for reasons I will give in writing later today I decline to grant that application. You have not established that the direct and indirect consequences of a conviction are out of all proportion to the gravity of your offending.

The offending

[3] The facts on which you are to be sentenced are contained in an agreed summary of facts. This reveals that Mr Rasila was employed by the Council as a procurement relationship specialist between June 2012 and 28 April 2016. This role required him to maintain the Council’s relationship with suppliers of goods and services, and in particular, office supplies.

[4] You and Mr Rasila have been friends for a long time, and at one stage both worked for the same employer. Mr Rasila also boarded with your family for a period of approximately six years between 2005 and 2011. You then maintained your friendship after Mr Rasila commenced working for the Council. During this period you went on to establish your own commercial printing and office stationery supply company, On Time Print Finishers Limited (On Time Print).

[5] As part of its services, the Council supplies members of the public with property files for a fee. These contain information held by the Council that may be of interest to persons seeking to purchase or obtain information about properties in the Auckland area.

[6] Up until 2015, the Council delivered its property files to recipients on compact discs. During that year the Council began investigating the possibility of delivering information to recipients on USB devices. Mr Rasila was one of the Council’s staff

1 Secret Commissions Act 1910, ss 3(1) and 13.

members responsible for investigating the proposed transition to USB devices. Up until that time his role at the Council had focussed on the maintenance of the Council’s relationship with a single supplier of office products. His involvement in the establishment of a new contract for the supply of USB devices was therefore outside the normal course of his duties.

[7] Mr Rasila knew from his involvement in the process that the contract for the supply of USB devices would be awarded to the supplier who could supply them at the cheapest price. Between September and December 2015 Mr Rasila undertook his own investigations…

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 Chand

Details

AGLC: R v Chand [2020] NZHC 1077
Case: [2020] NZHC 1077
Decision Date: 21 May 2020

CaseChat Overview and Summary

In this case, Sunil Chand was charged with corruptly providing a financial gift to an agent, Mr Rasila, without the consent of his principal, the Auckland Council. Chand pleaded guilty to the charge, which carries a maximum penalty of seven years imprisonment under the Secret Commissions Act 1910. Chand applied to be discharged without conviction under section 106 of the Sentencing Act 2002, but the application was declined by the court. The court found that Chand had not demonstrated that the consequences of a conviction were out of proportion to the gravity of his offending.

The court considered the legal issues of determining an appropriate starting point for sentencing, and whether any aggravating or mitigating factors should be taken into account. The court found that the culpability of Chand's actions lay in the fact that payments made to employees of public bodies undermine the procurement process and call into question the integrity of public administration. However, the court also found that Chand's offending was less serious than that of Mr Rasila, who was the instigator of the offending. The court set a starting point of 10 months imprisonment, and applied discounts for Chand's previous good character and early guilty plea, resulting in a sentence of six months imprisonment. However, given Chand's lesser role in the offending, the court decided that a custodial sentence was not required, and sentenced Chand to six months community detention with electronic monitoring.

The final orders of the court were that Chand be sentenced to six months community detention with electronic monitoring at his nominated home address between the hours of 5 pm and 5 am, subject to the conditions set out in the EM bail assessor's report.

Orders