R v Patel - [2018] NZHC 2946

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-090-3557

[2018] NZHC 2946

THE QUEEN

v

ATTUL KUMAR PATEL

Hearing: 13 November 2018

Counsel:

E Woolley for Crown

J A Anderson for Defendant

Judgment:

13 November 2018

SENTENCING NOTES OF WHATA J

Solicitors: Meredith Connell, Auckland

R v PATEL [2018] NZHC 2946 [13 November 2018]

[1] Mr Patel, you appear for sentence on one charge of indecent assault. The maximum penalty is seven years’ imprisonment. This is your fourth such offence in five years. Because of this, I must consider whether you are subject to what is known as a third strike sentence. If you are, you must be sentenced to the maximum term of imprisonment without parole, unless it would be manifestly unjust to do so.1 If you are not, it is accepted by your counsel that you must be sentenced for a second-strike offence. This will mean that you must serve, in full, any sentence of imprisonment imposed by me.2

[2] My sentencing will be in three parts. First, I will describe the facts of your offending and your personal circumstances; second, I will address whether you are subject to a third strike sentence; and, third, I will sentence you.

Facts

[3] On Sunday, 22 July 2018, the complainant and her sister went to Event Cinemas at Westgate, Massey, to watch a movie. At about 4.30 pm, the complainant and her sister sat in a row of seats in one of the cinemas at the complex. Walking past several empty seats, you sat next to her. You then looked at the complainant a number of times during the movie, before you slid your right hand under the complainant’s buttocks on her seat. The complainant was startled by your actions and looked to see your right hand on the seat next to her and she asked what you were doing. She then told you to move. You eventually moved one seat from the complainant. The complainant’s sister then told you to get out of the theatre and you left the theatre. When asked by police about the offending, you explained that you had an issue with anxiety and cannot control your hands, and you did not know why you sat next to the complainant.

Personal circumstances

[4] I turn now to your personal circumstances. As noted, this is your fourth such offence since 2013. On the first occasion, you entered the cinema, sat next to the victim and indecently assaulted her by rubbing her leg and moving your hand up her

1 Sentencing Act 2002, s 86D
2 Section 86C.

thigh. On the second occasion in 2014, you again entered a cinema, sat next to the victim and placed your hands on her bare upper leg. This happened on three separate occasions before she pushed you away and you left the theatre. You were convicted and sentenced for both offences in the Waitakere District Court on 13 May 2014. You…

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 Patel

Details

AGLC: R v Patel [2018] NZHC 2946
Case: [2018] NZHC 2946
Decision Date: 13 November 2018

CaseChat Overview and Summary

The case of R v Patel was heard in the High Court of New Zealand, Auckland Registry. The defendant, Attul Kumar Patel, was convicted of indecent assault and was facing sentencing for his fourth such offence within five years. Patel had previously been convicted for similar offences in 2013, 2014, and 2017, receiving warnings and sentences for his prior offences. The court had to decide whether Patel was subject to a third strike sentence, which would require him to be sentenced to the maximum term of imprisonment without parole. Given that Patel had not received a valid written warning for his second strike offence, the court determined that he should be sentenced as if it were a second strike offence.

The court examined Patel's personal circumstances, including his mental health conditions, his employment, and his family situation. Patel had been diagnosed with generalised anxiety disorder, dissociative amnesia, avoidant personality traits, depression, and Obsessive Compulsive Disorder (OCD). The court considered expert reports that suggested Patel's OCD drove his behaviour and that his risk of reoffending was low when he was medicated. The court also noted Patel's remorse, his active steps to prevent reoffending, and his employment as an accountant. The victim impact statement highlighted the significant distress and mistrust experienced by the victim as a result of Patel's actions.

Given the nature of the offence and Patel's prior history, the court decided on a sentence of home detention for five months, with conditions that Patel take his medication and continue treatment. The court imposed additional conditions, including post-release conditions and a requirement for Patel to make an emotional harm payment to the victim. The court also issued Patel with a formal second-strike warning, explaining the severe consequences of any future serious violent offence.

Orders