R v Chand - [2020] NZHC 1081

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-004-5696

[2020] NZHC 1081

THE QUEEN

v

SUNIL CHAND

Hearing: 21 May 2020

Appearances:

B H Dickey and R Williams for Crown A Kashyap for Defendant

Judgment:

21 May 2020

Reasons:

21 May 2020

REASONS FOR JUDGMENT OF LANG J

[on application for order discharging defendant without conviction]

This judgment was delivered by me on 21 May 2020 at 3.30 pm.

Registrar/Deputy Registrar Date……………

R v CHAND [2020] NZHC 1081 [21 May 2020]

[1] Mr Chand has pleaded guilty to one charge of corruptly giving a gift to an agent, his co-defendant Mr Sundeep Rasila, without the knowledge of Mr Rasila’s principal, the Auckland Council.1 The maximum penalty for this offence is seven years imprisonment.

[2] Mr Chand sought an order under s 106 of the Sentencing Act 2002 discharging him without conviction. He contended the consequences of a conviction will be out of all proportion to the overall gravity of his offending. The Crown opposed the application. It said the likely consequences of the offending are entirely proportionate to its gravity.

[3] I received written submissions from both the Crown and counsel for Mr Chand prior to the sentencing hearing this morning. During the hearing I advised counsel I proposed to decline the application and would give my reasons in writing. These are the reasons for my decision.

Approach

[4] An application for discharge without conviction is governed by s 106 of the Act, which relevantly provides as follows:

106 Discharge without conviction

(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

…

[5] In applying s 106, the Court must follow the guidance contained in s 107 of the Act. This provides:

107 Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

1 Secret Commissions Act 2010, ss 3(1) and 13.

[6] A court considering an application for discharge under s 106 must consider three issues.2 It must first assess the gravity of the offending having regard to the facts of the particular case. This exercise is not restricted to the aggravating and mitigating factors of the offending itself. Factors personal to the offender may also be relevant.3 Next, it must identify the direct and indirect consequences of a conviction being entered. In this context there must be a “real and appreciable” risk that any posited consequence will occur.4 Thirdly, the court must determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending. There is a residual discretion not to grant a discharge but that will rarely be…

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 1081
Case: [2020] NZHC 1081
Decision Date: 21 May 2020

CaseChat Overview and Summary

Sunil Chand pleaded guilty to corruptly giving a gift to an agent, his co-defendant Mr Sundeep Rasila, without the knowledge of Mr Rasila’s principal, the Auckland Council. The maximum penalty for this offence is seven years imprisonment. Mr Chand sought an order discharging him without conviction, contending the consequences of a conviction will be out of all proportion to the overall gravity of his offending. The Crown opposed the application, arguing the likely consequences of the offending are entirely proportionate to its gravity. The court had to decide whether the consequences of a conviction would be out of all proportion to the gravity of the offending to determine if the statutory criteria for a discharge without conviction had been met.

The court considered the gravity of the offending, assessing it as low to moderate before taking into account mitigating factors, and low overall. The court also considered the likely consequences of a conviction, assessing them as low. The court found that the consequences of a conviction will not be out of all proportion to the gravity of the offending. The court therefore declined the application for a discharge without conviction.

The court noted that a conviction will not prevent Mr Chand from working in his chosen field, and that customers who wish to purchase office and printing products from Mr Chand will likely be more concerned about the quality and price of the products and services he provides than a present conviction. The court found that Mr Chand was exaggerating the likely consequences for his continued ability to trade in the future. The court concluded that Mr Chand had not established the necessary threshold to provide jurisdiction for the Court to grant a discharge without conviction.

Orders