R v Chetty - [2016] NZHC 1957

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-044-1222 [2016] NZHC 1957

THE QUEEN

v

SATYAM SIVAM CHETTY

Hearing: 4 - 8 July 2016

Appearances:

J Murdoch for the Crown
S Lance for the Defendant

Sentence:

22 August 2016

SENTENCING NOTES OF MUIR J

Counsel/Solicitors:
J Murdoch, Meredith Connell, Auckland
S Lance, Barrister, Auckland

R v CHETTY [2016] NZHC 1957 [22 August 2016]

Introduction

[1] Mr Chetty, you appear before me today to be sentenced in respect of one charge of sexual violation by rape for which you were found guilty by a jury on
8 July 2016. That same jury acquitted you on a charge of sexual violation by unlawful sexual connection. I am required to set out for the purposes of these sentencing notes something of the factual background, which I now do.

Factual background

[2] On 10 March 2014 the complainant, who I will refer to simply as MT throughout for the purposes of her anonymity, and her cousin had been drinking from approximately mid-afternoon. Late that evening they arranged to be driven to the inner city purchasing some additional alcohol on the way. They went to a bar at the Viaduct Harbour known as Danny Doolans where further alcohol was consumed. The video footage identifies MT dancing with Mr Chetty, at times closely. MT’s cousin was in due course asked to leave Danny Doolans on account of his intoxication and did so, eventually with MT. They met the defendant again at a local takeaway bar. There was some discussion about what other dance venues might still be open. They decided to go to the “White House” in Upper Queen Street which is styled as a “gentleman’s club”. Further alcohol was consumed by MT at that venue. At one stage she slipped as a result of intoxication and was assisted by the defendant. The defendant claimed in his police interview that MT also made overt sexual advances to him at the White House. MT has no recollection of that in the same way she has no recollection of large parts of the evening generally.

[3] At a time which is likely to have been somewhere between 2.30 am and 3.00 am MT, her cousin and the defendant left the White House. The defendant offered to drive MT to her home on the North Shore, it is said, as a result of a request to do so by MT. They stopped at Barry’s Point Road in Takapuna to get petrol which MT’s cousin was to pay for. He did not have funds to do so. He was seriously intoxicated and video footage indicates him at one stage remonstrating with the defendant in the forecourt.

[4] The defendant decided to drive off leaving the cousin at the service station. He then drove across the road to a supermarket car-park where he proceeded to have sexual intercourse with…

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 Chetty

Details

AGLC: R v Chetty [2016] NZHC 1957
Case: [2016] NZHC 1957
Decision Date: 22 August 2016

CaseChat Overview and Summary

Satyam Sivam Chetty was convicted of one charge of sexual violation by rape. The defendant's counsel argued that the appropriate starting point for sentencing was between six and seven years' imprisonment, placing the offending at the lower end of Band 1, whereas the Crown submitted that the appropriate starting point was nine years' imprisonment, placing the offending towards the bottom of Band 2. The High Court found the case to be at the lower end of Band 2. The Court found the most significant aggravating feature was the vulnerability of the victim, who was so intoxicated that she was unable to consent to sexual intercourse. The Court also found a modest breach of trust, but placed little weight on premeditation. The harm suffered by the victim was also considered to be an aggravating feature. The defendant had no prior convictions, was well supported by his family, and had indicated a willingness to attend a treatment programme for adult sexual offenders. The Court allowed a discount of six months for the defendant's previous good character and a further 12 months discount for the restrictive terms of bail he had been subject to for an extended period before his conviction. Chetty was sentenced to six years and two months' imprisonment for sexual violation by rape. The Court did not consider it necessary to impose a minimum period of imprisonment.

Orders