R v Sharma
[2017] NZHC 2925
•28 November 2017
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 RespondentJudgment:
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 in those calls he repeatedly asked the complainant to write letters asking for the charges against him to be dropped, indicating that she should write and advised that she should say she “made everything up”. The appellant discusses aspects of the video “confession” the complainant makes. The appellant also asks the complainant to leave town prior to the trial so she cannot be contacted and that the charges against him might be dropped for lack of evidence.
[8] The discovery of these conversations meant that the trial was postponed and a new charge of attempting to pervert the course of justice was laid.
[9] In the PAC report dated 29 September 2017 the author indicates that the appellant continued to plead his innocence to all the charges (including the assault with intent to injure and threatening to kill charges). Despite claiming that all the complainant’s claims were false, the appellant expressed to the author of the PAC report a willingness to continue to be in a relationship with the complainant.
[10] Three days later at the sentencing Mr Sharma’s counsel expressed a different position: namely that his client was remorseful, he acknowledged that he had been violent, and he acknowledged that for the purposes of sentencing the amended summary of facts was correct. A letter of remorse written by the appellant was also submitted.
District Court decision
[11] Judge Mackintosh in the District Court held:1
1 R v Sharma [2017] NZDC 22272.
(a) The evidence did not support the claim of collusion between the appellant and the complainant. The calls were initiated by the appellant, there were 93 calls over a nine week period (1 January 2017 to 8 March 2017) and they were made to the complainant who had suffered violence at the appellant’s hands. The complainant was the subject of a protection order, had been subject to “quite serious violence” and had been subjected to a sustained campaign to influence her in both “subtle” and “not-so-subtle” ways. The calls were “an obvious attempt … to manipulate [the complainant] to get [Mr Sharma] out of the situation [he] had got [himself] into”.
(b)The appellant had pleaded guilty to the assault and threatening to kill charges, as well as to the attempting perverting the course of justice charge.
(c) The appellant fluctuated in his feelings and expression of remorse. In the pre-sentence report the appellant maintained that he was innocent and the scene was a set up, while at sentencing the appellant admitted his violence and expressed remorse. The Judge did not find this mitigating factor adequate to qualify for a discount independent to that for a guilty plea.
(d)The sentence must balance the aggravating and mitigating factors of the offending. The Judge also needed to have consideration to the need for deterrence, and denunciation, while still imposing the least restrictive sentence possible.
(e) In relation to the assault and the threat to kill the agreed starting point by the parties was 10 months.
(f) In relation to the attempt to pervert the course of justice, aggravated by the breach of a protection order, the Judge held the appropriate starting point was two and a half years.
(g)In relation to the guilty plea, this came only after the withdrawal of the charge of kidnapping. The judge awarded the appellant a 15 per cent discount for his plea.
(h) The Judge applied the guilty plea discount in the following way:
(i) The 10 month sentence was reduced to eight and a half months; (ii) The two and a half year sentence was reduced to 25 and a half
months.
(iiii) The total cumulative sentence was thus two years and ten months.
(i)The Judge held that two years and ten months was, in totality, an excessive sentence. The Judge however wished to emphasise that attempts to pervert the course of justice would be treated harshly by the courts, and that a cumulative, not concurrent sentence would be imposed. Her solution, taking into account the totality principle, was to impose the following end sentence:
(i)Eight and a half months imprisonment for the threat to kill and assault with intent to injure;
(ii)21 and a half months for attempting to pervert the course of justice, to be served cumulatively;
(iii) Six months for breach of a protection order, to run concurrently.
(j)A final cumulative sentence of 30 months was imposed, with a concurrent six month sentence for the protection order breach.
Submissions
[12] Mr Dixon for the appellant submits:
(a) The starting point of two and a half years for attempting to pervert the course of justice charge was too high and manifestly excessive. He submitted that a starting point of one and a half years is more appropriate.
(i)For less serious attempted perversions of the course of justice, he submitted the correct starting point was between 18 and
24 months.2
(ii)The lead charge originally (kidnapping) was “false” and “there was no overarching behaviour” from the appellant. He submitted that the kidnapping was in fact a joint venture between the appellant and the complainant, who he said had made up the kidnapping allegation”.3 In his oral submissions in support of the appeal he referred in particular to the transcript of the video made by the complainant in support of his allegation that the complainant had made up the kidnapping allegation. In counsel’s written submissions, he described the complainant as “no shrinking violet” and said that a full review of the 93 telephone calls demonstrated no power imbalance between the parties, or that the appellant was manipulative. He said the two parties “were equals and this was a joint venture”. He noted that there was no threat of violence in the phone calls.
(iii)In his oral submissions before me Mr Dixon referred to and read out extracts from the transcript of one of the telephone calls in question. In response to a question from me he indicated that
there was no evidence that Judge Mackintosh had the transcript
2 R v Rakete HC Auckland CRI-2009-404-179, 21 August 2009 at [25].
3 Defendant’s submissions on sentencing, 12 November 2017 at [7].
of the calls before her when sentencing. As I explained to Mr Dixon this Court’s role in a sentencing appeal is to establish whether or not there has been an error in the application of the legal principles by the Judge or in the interpretation of the relevant facts. It is not appropriate on appeal for information that was not available to the District Court Judge to be tendered or referred to, perhaps absent to the situation where there has been a clear miscarriage of justice.
(iv)In the present case the Court derives no assistance from the extract referred to by counsel and notes that in any event such information would need to be seen and understood in the context of all the other calls.
(v)I decline to attach any weight to the extract that counsel read to me.
(vi)In his submissions Mr Dixon submitted that R v Potaka- Alexander is nearly identical on the facts and ought to inform the Court’s decision. In that case there was collusion by the complainant to pervert the course of justice.
(b)Mr Dixon submitted on that basis that the end sentence here was too high and that it ought to have been 24 months before adjustments.
(c) He also submitted that the guilty plea discount of 15 per cent was too small.
(d)He said the correct sentence before discounts should be 28 months. If so, the sentence of imprisonment would be less than one year and the appellant would be available for immediate release.
(e) The transcript of the complainant’s recantation of 8 March 2017 was attached to Mr Dixon’s written submissions and extracts from it were highlighted in his oral submissions.
[13] For the sake of completeness I will refer to Mr Dixon’s submissions at the time of sentencing (dated 27 September 2017). His submissions on that occasion said:
(a) A lower starting point of 18 months was appropriate in relation to the perversion of justice charge because the kidnapping charge was withdrawn, the influence attempted by the appellant over the complainant was “non-threatening” and the complainant colluded to pervert the course of justice with the appellant.
(b) The sentences ought to run concurrently.
(c) The appellant denied the kidnapping charge, but admitted he was violent. He instructed his counsel to communicate to the Court that he is remorseful for the violence and verbal abuse.
(d)The attempt to pervert the course of justice was admitted and was “naïve offending” which legal advice could have prevented as it was always going to be ineffective.
(e) The attempting to pervert the course of justice offending was analogous to R v Potaka-Alexander where a starting sentence of 18 months was imposed for the charge.
(f) In relation to the breach of the protection order, the offending was at the lowest level, as the complainant was a willing participant in the phone calls. Any sentence should be imposed concurrently with the sentence for the violent offences.
(g)The appropriate guilty plea discount was 20 per cent for the attempting to pervert the course of justice charge. A discount of 25 per cent was appropriate in relation to the threats to kill and assault convictions.
[14] I turn now to the submissions of Ms Cooke for the Crown. She submitted as follows:
(a) The end sentence imposed was well within range and reflected the totality and seriousness of the appellants offending. No error had occurred.
(b)The appellant’s calls from prison revealed that he repeatedly asked the complainant to write letters asking for the charges against him to be dropped. In her oral submissions Ms Cooke amplified that submission by noting that the appellant had requested the complainant to write seeking that all of the charges be dropped not just the kidnapping charge. Ms Cooke submitted that the appellant indicated to the complainant what he wanted her to write. He asked her to say she made everything up. He asked the complainant to leave town prior to the trial so that she could not be made to testify. He told her that if she was unavailable then the charges against him would be dropped. The sentencing Judge correctly called this an “obvious attempt” to manipulate the complainant to get himself out of the situation he had got himself into.
(c) The starting point of two and a half years for the attempting to pervert justice charge was appropriate and within the range.
(d)In response to the appellant’s claim that the kidnapping charge was “false” it was noted that the Crown was ready to proceed with the trial on all charges, including the kidnapping charge. The appellant indicated a willingness to plead guilty to all charges bar the kidnapping charge on the Friday before the Monday that the trial was due to commence on. The Crown accepted this plea so as to avoid the need to call the complainant as a likely hostile witness.
(e) In her oral submissions Ms Cooke referred me to Judicial Authority in relation to situations where a charge is withdrawn on this basis and the relevance of that withdrawal to the discount.
(f) Ms Cooke submitted that the Judge was correct to find there was no collusion between the appellant and complainant; rather the complainant had been subjected to a sustained campaign to influence her, in the context of a violent relationship.
(g)She submitted that the starting point in Harting v R was two years imprisonment, affirmed by the Court of Appeal. She submitted that in that case the attempted perverting of justice was both less serious and less sustained than in the present case. She listed as the factors that distinguish the authority relied on by the appellant as being the persistent nature of the attempts spanning the period of nine weeks the
93 separate telephone calls, the breach of the protection order and the fact that the approaches in this case were direct and not through third parties.
(h)In relation to the guilty plea discount, Ms Cooke submits that the discount given by the Court was lenient given that the appellant pleaded guilty three days before his trial was to start. She submitted that the Supreme Court has noted that there are many variable circumstances in each case which affect the sentencing Judge’s decision in relation to such discounts.4
(i)She said the appellant has benefited from an effective four month discount for the totality of the offending. In total this means his discounts combine to a 27 per cent discount, which she submitted was
generous in the circumstances.
4 Hessell v R [2010] NZSC 135 at [74].
Law on appeal
[15] A first appeal against sentence is a right under s 244 of the Criminal Procedure
Act 2011 (CPA). The first appeal court must allow the appeal if satisfied that:5
a) … there is an error in the sentence imposed on conviction; and b) A different sentence should be imposed.
[16] An appeal against sentence is an appeal against a discretion. The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.6 The “manifestly excessive” test has been maintained in the Courts’ application of s 250.7 The Court will not normally interfere unless the end sentence was outside the range available to the sentencing Judge.8
[17] In R v Potaka-Alexander the sentencing notes record that the basis of the attempting to pervert the course of justice charge was that the offender wrote a letter from prison to the victim:9
asking her to support a story you concocted to try to avoid conviction for the attacks on Constable Iversen. You told Ms K that she was to engage a lawyer to prepare an affidavit for her. In this affidavit she was to make statements on your behalf which you have admitted are lies.
[18] Those are different to the facts in this case. I accept the submissions made by Ms Cooke for the Crown that the present case involved a sustained effort by the appellant over an extended period of time involving some 93 phone calls. I also accept that it was a direct approach. I do not accept Mr Dixon’s submission that there was collusion or that Judge Mackintosh erred in that finding.
Analysis
[19] The key issue for determination on this appeal is whether the sentencing Judge erred in determining that the appellant’s actions were at the more severe end of the
scale in attempting to pervert the course of justice.
5 Criminal Procedure Act 2011, s 250(2).
6 Ripia v R [2011] NZCA 101 at [15].
7 Tutakangahau v R [2014] NZCA 279 at [26] and [33].
8 At [35].
9 R v Potaka-Alexander at [8].
[20] This submission by Mr Dixon hinges on his interpretation of the appellant and complainant’s relationship which was advanced by him at sentencing and which the Judge explicitly rejected at two points in her judgment.10 Mr Dixon submits that the complainant was “no shrinking violent” and the relationship between the appellant and complainant was not one involving a power imbalance or manipulation.
[21] The statement of facts depicts a relationship characterised by abuse, threatening language and repeated attempts at manipulation. The appellant pleaded guilty on the basis of that statement of facts.
[22] On the evidence before this Court, the Judge’s conclusions challenged by
Mr Dixon were amply open to her.
[23] I find the Judge was equally entitled to reject Mr Dixon’s submissions as to the degree of analogy that the facts of R v Potaka-Alexander has.
[24] I find that the sentencing Judge was correct to place the appellant’s behaviour at the higher end of the scale in relation to attempts to pervert the course of justice. Such attempts are aggravated in the case law by a combination of the dynamic between the parties, the violence inherent in the attempt, and the attempt’s sustained nature or duration.
[25] Here the context of the attempts by the appellant was that he had exhibited violent behaviour toward the complainant, his attempts traversed a sustained period of time and included multiple requests for various different actions by her, all the while continuing (it appears) to attempt to continue a relationship with her. While Mr Dixon is correct in that there is no record of a threat of violence in relation to the attempts to pervert the course of justice, I do not find this lessens their severity and culpability. This is not, as claimed by Mr Dixon “naïve offending”. It was a sustained effort by a man used to getting his own way to manipulate an outcome he desired, which was the
thwarting of the course of justice.
10 R v Sharma [2017] NZDC 22272 at [12] and [21].
[26] It is commonly accepted that attempting to pervert the course of justice warrants “moderately lengthy terms of imprisonment”.11 The Courts have held that lower-level offending of this kind warrants a sentence or starting point of between
18 and 24 months.12 At the upper end of the scale, the Courts have decided that
three years is indicative of the severity of the offence.
[27] While the 30 month point in this case is toward the higher end of the range, the sentencing Judge cannot be said to have made an error. It would perhaps have been better for her to have distinguished between the sentence for the attempted perversion of the course of justice and the breach of the protection order. However the Judge was able to mitigate the total she arrived at by the application of the totality principle. Such an approach has been approved by the Court of Appeal.13
[28] I agree with the Crown that a guilty plea discount of 15 per cent is best appropriately classified as generous in the circumstances of this case. Guilty plea discounts are made upon consideration of all the factors in the case.14 The accepted upper limit for the discount is 25 per cent.15 Here, the trial Judge balanced the fact that the guilty plea came on the Friday before the Monday trial date, against the fact the guilty plea was to the less severe charges, the kidnapping charge having been withdrawn. Weighing these two factors a discount of 15 per cent is not in error.
[29] I agree that a cumulative sentence is appropriate here for the two separate types of offending, the threatening behaviour and the assault and later attempts by the appellant to persuade the complainant to help him avoid responsibility for the first round of offending.
[30] The end sentence was appropriate and within the range reasonably available to the sentencing Judge.
11 R v Churchwell CA 439/05, 2 March 2006.
12 R v Rakete HC Auckland CRI-2009-404-179, 21 August 2009.
13 See for example R v Williams CA91/00, 3 May 2000 at [11].
14 Hessell v R [2010] NZSC 135 at [74].
15 At [75].
Conclusion
[31] The sentence cannot be described as manifestly excessive. I have not been persuaded by the appellant that there was any error in the process requiring a different
sentence. Accordingly, the appeal is dismissed.
Churchman J
Solicitors:
Crown Law Office, Wellington
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