R v Dhillon
[2021] NZHC 1454
•18 June 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-004-6762
[2021] NZHC 1454
THE QUEEN v
RAVJOT DHILLON
Hearing: 18 June 2021 Appearances:
J B Barry and R Tasman-Jones for Crown M P Hislop for Defendant
Judgment:
18 June 2021
JUDGMENT OF LANG J
[on application for discharge under s 106 of the Sentencing Act 2002
This judgment was delivered by me on 18 June 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Auckland
R v DHILLON [2021] NZHC 1454 [18 June 2021]
[1] Mr Dhillon was found guilty by a jury on a charge of assault with intent to injure. At sentencing he applied for an order under s 106 of the Sentencing Act 2002 discharging him without conviction. I declined to grant the application and entered a conviction. After hearing submissions from counsel I sentenced Mr Dhillon to 100 hours community work. I now give my reasons for declining his application for discharge without conviction.
The offending
[2] The charge was laid as a result of an incident that occurred late in the evening of 3 July 2017. On that evening Mr Dhillon’s co-defendant Mr Jatinder Momi and two friends attended a party at a residential address in Mount Wellington. Mr Dhillon was not at the party. During the evening an argument arose between members of Mr Momi’s group and a group of other persons who were also present at the address. It is not known what prompted the argument, but from comments Mr Momi made subsequently it appears that something was said by the opposing group that embarrassed him and his associates. The argument became sufficiently heated that an occupier of the address asked Mr Momi’s group to leave. As they left, several eyewitnesses heard words being said to the effect “We will return”, or “We will see you again”.
[3] Approximately one and a half hours later the persons with whom Mr Momi and his associates had been arguing left the address to get some food. As they did so, two cars drove into the street. Eight to ten persons got out of the cars, several of whom were carrying weapons. These persons immediately began attacking the persons who had been leaving the address.
[4] The ensuing physical altercation resulted in the police being called by persons in the vicinity. A police patrol vehicle arrived just as the persons who had carried out the attack were endeavouring to leave the scene in their vehicles. The police immediately blocked the street and prevented the attackers from leaving. Mr Dhillon was one of those persons. He was found in bare feet and had sustained a cut to his foot. The police found broken glass on the ground in the area where the attack had taken place.
[5] Three persons were injured during the attack. One of these had a fracture to his skull, a laceration to his head and bruises to his body. These injuries required hospitalisation and surgery. A second victim had several scalp lacerations as well as a laceration to his right index finger and multiple bruises to his back. These required medical attention in the form of staples and stitches. The Crown laid charges against Mr Dhillon alleging he had been a party to the wounding of these complainants with intent to cause them grievous bodily harm. The jury found him not guilty on those charges.
[6] The third complainant, Mr Gursharan Singh, sustained relatively minor grazes and bruising to his face and arm. The jury found Mr Dhillon guilty of assaulting this complainant with intent to injure him.
[7] The police found a variety of weapons in the area where the attacks had occurred. Other weapons were also found in the vehicles in which the attackers had endeavoured to leave the scene. The police arrested virtually all the persons travelling in those vehicles. In total eight persons were initially charged with the alleged offending. Thereafter, however, it took nearly four years for the charges to be the subject of a trial in this Court. By that time only Mr Dhillon, Mr Momi and Mr Amandeep Singh were still in New Zealand. The remaining defendants had been able to leave the country and return to India.
Relevant principles
[8] 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.
…
[9] 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.
[10] A court considering an application for discharge under s 106 must consider three issues.1 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.2 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.3 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 exercised where the statutory criteria have been met.
Gravity of the offending
[11]When I sentenced Mr Dhillon, I assessed his culpability as follows:4
[9] In order to sentence you it is necessary to reach findings of fact regarding your role in the incident that led to the charge on which you were found guilty. You were not present at the party where the argument between Mr Momi’s group and the other group occurred earlier in the evening. You came to the address after being summoned to do so by Mr Momi. During the trial a text message from Mr Momi to you containing the address of the place where the incident occurred was produced. When the police arrived at the scene, they found you in bare feet. You told the police that you had been telephoned by Mr Momi to come and collect him and you had not bothered to put shoes on. You maintain you drove to the scene with another defendant, Mr Lovepreet Singh, and people began getting into your car as soon as you arrived. You denied having played any part in the assault on any of the complainants. The jury plainly took a different view in relation to Mr Gursharan Singh and I am bound by their verdict.
[10] The Crown submits the jury’s not guilty verdicts are explicable on the basis that you arrived at the scene knowing the group you were with shared a common intention to inflict physical harm on the persons with whom Mr Momi and his associates had been arguing earlier in the evening. However, unlike Mr Momi and Mr Amandeep Singh, the Crown says the jury must have
1 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16] to [17].
2 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC (CA47/2013) v R [2013]
NZCA 255 at [35].
3 DC (CA47/2013) v R, above n 4, at [43].
4 R v Dhillon [2021] NZHC 1449.
found you did not know that the infliction of grievous bodily harm on those persons was something that could well happen in carrying out the common purpose.
[12] In the present context further issues are taken into account, including the offender’s previous convictions (if any) and any other aggravating and mitigating factors personal to the offender. Taking these factors into account I assess the overall gravity of the offending as low. This reflects the fact that Mr Dhillon has no previous convictions and appears to have been a model resident up until the time of the present offending. Furthermore, I consider the jury found Mr Dhillon guilty as a party to a relatively minor assault and it cannot be shown that he caused any injury to the complainant himself. The offending is aggravated only by the fact that Mr Dhillon was prepared to be part of a group attack on the complainant and that he did so knowing one of the members of the group was using a stick as a weapon.
Consequences of conviction
[13] Mr Dhillon is concerned that any conviction may affect his current and future employment as a truck driver.5 He is presently employed by a company that carries out work on contract for a nationwide courier company.
[14] The evidence that Mr Dhillon may lose his current employment is relatively vague. He has produced an email from his employer’s Operations Director, who states that he understands he will have to let Mr Dhillon go if he sustains a criminal conviction. He says that the organisation for which Mr Dhillon’s employer carries out work on contract “is very strict around who is around their freight”.
[15] However, it is not immediately clear why a courier company would consider the present conviction may impact on Mr Dhillon’s suitability to continue in his employment. He has accrued a stable employment history over the last seven years and is clearly highly thought of by his present employer. Furthermore, the present offending does not involve allegations of dishonesty or any other attribute that might be inherently incompatible with his occupation as a courier driver. In addition, Mr Dhillon’s employer (and any future employer) will have the benefit of my sentencing
5 At the hearing counsel for Mr Dhillon abandoned an argument based on the fact that a conviction will require Mr Dhillon to postpone any application for New Zealand citizenship for three years.
remarks as well as this judgment. These, together with the sentence of community work that I imposed, confirm the relatively low level of Mr Dhillon’s offending. Finally, even if Mr Dhillon does lose his current employment I do not consider the conviction will hinder him obtaining alternative employment as a truck driver for another employer given his employment record to date.
[16] Viewed in combination, I assess the likely consequences of a conviction as being low to very low. It follows that the likely consequences of a conviction are not out of all proportion to the overall gravity of Mr Dhillon’s offending.
Result
[17]For these reasons I dismissed the application for discharge without conviction.
Lang J