R v Sharma - [2017] NZHC 2925

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2017-441-38 [2017] NZHC 2925

THE QUEEN

v

DEEPAK KUMAR SHARMA

Hearing: 28 November 2017

Appearances:

M Dixon for Appellant
M H Cooke for Respondent

Judgment:

28 November 2017

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1] Deepak Kumar Sharma (the appellant) was sentenced to a total sentence of 30 months’ imprisonment after pleading guilty to four offences:

(a) assault with intent to injure;

(b) threatening to kill;

(c) attempting to pervert the course of justice; and

(d) breach of a protection order.

R v SHARMA [2017] NZHC 2925 [28 November 2017]

[2] He appeals against this sentence on four grounds that:

(a) the starting point adopted in relation to the lead offence of attempting to pervert the course of justice was manifestly excessive;

(b)the Judge took into account an irrelevant consideration (the kidnapping allegation, which he describes as being “false”);

(c) the Judge incorrectly found that there was no collusion between the appellant and the complainant; and

(d) the correct final sentence should be around 18 months imprisonment.

Factual background

[3] Mr Sharma is 26 years old. He began a relationship with the complainant in April 2015 and has a small child with her. At the time of the offending he and the complainant were living in a motel in temporary accommodation. The police attended a domestic violence incident on 17 September 2016 and the complainant left the motel to stay with her friends.

[4] The next day she contacted the appellant asking to return to their accommodation. He agreed. The appellant had been drinking and when the complainant returned to the room, he began verbally abusing and taunting her and then assaulting her. The appellant threatened to kill the complainant. The assault continued over a period, as did the verbal abuse.

[5] The next day the complainant went to the police and reported the assaults. She had bruising on her arms and leg, as well as a swollen cheek. She requested and was granted a protection order. The appellant was arrested and denied any of the offending had taken place, blaming the complainant for playing “mind games”. He was remanded in custody, with the trial set to be heard on 13 March 2017.

[6] On 8 March 2017 a video by the complainant was delivered to the police. In the video the complainant confesses to making up the statements against Mr Sharma,

most particularly that she had set up the scene in the motel to support her allegations of kidnapping. In the video she calls Mr Sharma “an innocent man … somebody that only wants to love his child”.

[7] In response to this, the police obtained recordings of the phone calls made by the appellant from prison to the complainant between 1 January 2017 and 8 March
2017. The summary of facts agreed to by the appellant states that there were some

93 calls or attempted calls to the complainant and that…

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 Sharma

Details

AGLC: R v Sharma [2017] NZHC 2925
Case: [2017] NZHC 2925
Decision Date: 28 November 2017

CaseChat Overview and Summary

Deepak Kumar Sharma appeals against his sentence of 30 months’ imprisonment imposed by Judge Mackintosh in the District Court. Sharma was convicted of four offences: assault with intent to injure, threatening to kill, attempting to pervert the course of justice, and breach of a protection order. Sharma argues that the starting point for the leading offence was too high, that the judge considered irrelevant information, that there was collusion between Sharma and the complainant, and that the correct sentence should be around 18 months imprisonment. The Crown argues that the sentence was within the appropriate range and that the judge was correct in her findings.

The Court found that Sharma’s attempt to pervert the course of justice was at the more severe end of the scale. The Court rejected Sharma’s argument that the facts were analogous to R v Potaka-Alexander, finding that the attempts were a sustained effort by Sharma to manipulate the outcome of his trial. The Court found that the starting point for the offence was appropriate, and that the total sentence imposed was within the range reasonably available to the sentencing Judge. The guilty plea discount was found to be generous in the circumstances. The Court dismissed the appeal.

No orders were made.

Orders