R v Ranchhod

[2009] NZCA 340

IN THE COURT OF APPEAL OF NEW ZEALAND

CA204/2009
[2009] NZCA 340

THE QUEEN

v

PRAVIN NANA RANCHHOD

Hearing:28 July 2009

Court:Hammond, Ronald Young and Simon France JJ

Counsel:A F Rickard-Simms for Appellant

M E Ball for Crown

Judgment:5 August 2009 at 11.30 am

JUDGMENT OF THE COURT

The appeal against both conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1]       Mr Ranchhod operates a corner store in Petone.  In late December 2006, Mr Ranchhod’s store, and his attached private residence, were the subject of a search undertaken pursuant to a warrant.  A large number of items, totalling around 200, were seized.  They included blankets, clothing, and cameras.  Many were in their original packing.  The suspicion was that the goods were stolen.

[2]       As it happens, of the items seized, seven were established as having been stolen.  Of these, three became the subject of charges.  It was alleged that Mr Ranchhod had received them, being reckless as to whether they were stolen.  The first count in the indictment concerned a laptop computer.  It was the subject of a successful pre‑trial application under s 347 of the Crimes Act 1961.  Consequently, Mr Ranchhod stood trial on a single count which alleged that he had received two cameras.

[3]       The jury found Mr Ranchhod guilty.  He was sentenced to a modest fine and ordered to pay $800 reparation.  Mr Ranchhod appeals both conviction and sentence.

[4]       Concerning the conviction, the first appeal ground is that evidence of the search, and of the other items seized pursuant to it, was improperly led.   This created a climate of prejudice.  Secondly, Judge Mackintosh in her summing up did not adequately set out what the jury was to do with this evidence, and failed to focus the jury on the actual charges.  And thirdly, originally, that trial counsel’s conduct of the hearing, and advice to Mr Ranchhod, raised issues of trial competency.  Affidavits having been filed, that last ground of appeal is abandoned.

[5]       In relation to sentence it is said Judge Behrens erred in declining to grant Mr Ranchhod a discharge without conviction, such error stemming from a misappreciation of the impact a conviction would have on Mr Ranchhod’s liquor off‑licence.

Ground one – inadmissible evidence

[6]       As noted, when Mr Ranchhod’s property was searched, a large number of items were seized.  Plainly the suspicion was that the goods were stolen property that Mr Ranchhod had bought for on‑sale.

[7]       The criticism made at trial is that despite only being charged with receiving two cameras, evidence was nevertheless led by the prosecution that the search took a long time, that nearly 200 items were seized and that it took two vans to remove them.

[8]       The potential for prejudice to arise from reference to all this other material is obvious.  There is a risk of fostering a climate where it is being inferred that the real picture of dishonesty is much bigger than these two cameras.  Further, any such climate could have been reinforced by the appellant’s video interview with the police which traversed systematically the various categories of items seized, and sought explanations.  The introduction of this formal interview at the trial again meant there was repeated reference to these other items which arguably were irrelevant since they were not shown to have been stolen goods.

[9]       When the concern is set out in this way, there is apparent legitimacy to the appeal ground.  The appellant argues that the properly admissible evidence was limited to possession of the two cameras that were the subject of charges, and the circumstances in which they were acquired.  However, the apparent merit of the complaint is removed by a consideration of the trial context.

[10]     The trial issue was whether Mr Ranchhod could be shown to have been reckless as to whether the cameras were stolen when he purchased them.  The immediate factual context was not promising for Mr Ranchhod.  The cameras had been bought from a person who came into the store carrying them in a hessian bag.  There were four cameras which he bought at that time; two proved to be stolen.  Although the two stolen cameras were individually worth over $1,000 each, Mr Ranchhod paid $700–$800 for the four in total.  He could not say who sold them to him.

[11]     Mr Ranchhod in his video statement had given three explanations for possession of all the seized goods.  First, some were said to be collateral for unpaid customer accounts. Secondly, some were collateral for loans he had made to people.  Thirdly, some were just purchases he had made from travelling salespeople who came by.  Some of these purchases were made with a view to on‑selling and some were made for personal retention of the goods.  Overlaying all these explanations was the proposition that Mr Ranchhod was a compulsive buyer and hoarder of things.

[12]     Faced with these circumstances, the defence tactic at trial was to emphasise the vast quantity of similarly stored and packaged goods that were present on his property.  Of the 200 items seized, only seven proved to be stolen.  Specifically in relation to cameras, of the four he had bought on the particular occasion, whilst two were stolen, two were not.  And indeed, of the total number of cameras found in the same filing cabinet drawer (14 in all), only these same two cameras had been shown to be stolen.  Focussing on this material, the defence proposition was that the jury should have a doubt about recklessness.  Mr Ranchhod bought and acquired a lot of goods, and the fact that a very small percentage were stolen did not reflect any dishonesty on his part.

[13]     It can be seen from this narrative that the evidence about all that was found during the search was necessary for this defence theory to be advanced.  What Mr Rickard‑Simms is now advancing on appeal are admissibility challenges that are premised on a wholly different defence tactic.  However, given that the complaint about the legitimacy of trial counsel’s performance has been (rightly) now abandoned, the admissibility argument is not open.  The defence needed the evidence to be led at trial and used it.  It was a legitimate trial tactic to not complain about admissibility.

[14]     It should also be noted that an alternative tactic of seeking to limit the evidence to just the cameras could only have been achieved if a court had ruled the whole of the video statement inadmissible.  Contrary to Mr Rickard‑Simms submission we do not consider the video could sensibly have been edited to remove all reference to other items.  If one was successful in such an application, and it is an if, the new issue that would have arisen for the defence is that any flexibility as to whether to call Mr Ranchhod to testify would inevitably have gone along with the video statement.

[15]     For these reasons we reject the admissibility challenges.  We do observe, however, that even given the trial context evidence was led that should not have been.  There was no relevance to the length of the search or the number of vans used to transport the seized items.  The prosecution should show more discipline in its analysis of relevance.  That said, none of these matters could amount to a miscarriage and so this ground of appeal is rejected.

Ground two – the summing up

[16]     The challenge to Judge Mackintosh’s summing up fails for the same reasons.  The essence of the complaint was that there was a need to warn the jury about the permissible use of this evidence.  However, once the defence chose to use the quantity of innocently held goods as a basis for drawing a favourable inference, it was open to the Crown to point to the circumstances of such acquisition and possession to highlight possible unfavourable inferences.  It cannot be that only one party is entitled to refer to the evidence and call it in aid.

[17]     Once that is accepted, the need for the Judge to spend more time on the permissible uses of the evidence is greatly diminished.  As it happens, the Judge obviously had these general concerns in mind.  Whenever the topic of this other evidence came up, the Judge was careful to remind the jury that the trial inquiry was the two stolen cameras.  In the circumstances of the case, nothing else was required.

[18]     The conviction appeal fails.

Sentence appeal

[19]     Mr Ranchhod has a liquor off‑licence.  We were told from the bar that it is a very important component of the financial viability of the store.  This was the primary basis on which it was argued at sentencing that Mr Ranchhod should be discharged without conviction.

[20]     Concerning this Judge Behrens observed:

[21]     The second suggested consequence, which is really a difficulty in getting a liquor licence, I think also falls far short of what might be a consequence out of all proportion to the gravity of the offending as I have found it.

[22]     I think really, as your counsel accepts, you now have a general manager’s certificate.  It will come up for renewal in February of 2010.  When faced with that renewal the Authority will be aware of a conviction that is now about to be entered for an offence committed by you in 2006.  In my view there should have been enough water passing under the bridge for an Authority to take into account the fact that you have led a blameless life since you committed this offence and I cannot see that the difficulty suggested in getting a liquor licence goes anywhere near to the point of being a consequence, direct or indirect, out of all proportion to the gravity of the offence.

[21]     Mr Rickard‑Simms submits that the Court erred in this reasoning.  He reads the Judge as saying it is not likely the relevant Authority will be concerned by such a dated conviction.  However, he submits, this has already been shown to be incorrect since Mr Ranchhod has been put on notice by the Authority that it intends to revisit his licence.  It is submitted that had the Judge appreciated this, a different outcome could and should have eventuated.

[22]     In response we first observe that we do not agree that is what the Judge is saying.  In our view the proper reading is that the Judge is saying the matter is such that the Licensing Authority will itself be able to assess the significance in light of all the factors, including how dated or otherwise the offending is.

[23]     Secondly, and reinforcing that reading, the proper focus for a sentencing Judge is on whether an inquiry into Mr Ranchhod’s licence as a result of the conviction would be so disproportionate as to support a discharge without conviction.  It is not for the Court to anticipate or determine the outcome of the inquiry.  Rather in some cases the Judge may be in a position to say that the nature of the offending is such that it would not be a proportionate response for there to be any jeopardy at all and so it is fair to avoid that by granting a discharge.

[24]     That disposes of the primary ground advanced in favour of the sentence appeal.  Two other points require noting.  First, Mr Rickard‑Simms submitted that including the two cameras together in one charge had the effect of combining the monetary value of the goods, and thereby placed the case within a higher sentencing bracket (a maximum penalty of seven years rather than two charges carrying a maximum of one year).  Whilst that is technically so, there is no basis to consider this had any impact on the sentencing outcome.  In the unusual facts of this case it was permissible to put the two cameras into one charge since they were bought at the same time as part of a bulk purchase.

[25]     Secondly, the Judge noted that the offending “had an aspect of fencing about it” (at [14]).  This observation could be said to be an example of the primary concern raised on the conviction appeal, namely the engendering of a suspicion that there was more to all this than just two cameras.  However, the Judge had earlier expressly stated that the other goods did not affect the sentencing.  Further, the outcome of the sentencing exercise, a $1,000 fine, is far from stern and adds no support to the proposition that sentencing proceeded on an exaggerated assessment of what was involved in the offending.

[26]     For these reasons the sentence appeal is also dismissed.

Solicitors:

Crown Law Office, Wellington