Rajgopaul v R - [2011] NZCA 593

IN THE COURT OF APPEAL OF NEW ZEALAND

CA279/2011
[2011] NZCA 593

BETWEEN NESHANDERAN RAJGOPAUL
Appellant

AND THE QUEEN
Respondent

Hearing: 10 November 2011

Court: Ellen France, Miller and Asher JJ

Counsel: R M Mansfield for Appellant
K Raftery for Respondent

Judgment: 30 November 2011 at 10 am

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

BThe appeal against sentence is allowed to the extent that the minimum period of imprisonment is quashed and substituted by the previous total minimum period of imprisonment broken down in the following way:
(a)A minimum period of imprisonment of eight years in relation to the 14 year sentence of imprisonment on the attempted murder count, cumulative on;
(b)A minimum period of imprisonment of two years’ imprisonment with respect to the four year sentence of imprisonment on the charge of discharging a firearm with intent to cause grievous bodily harm.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Table of Contents

Para No
Introduction  [1]
The attempted murder  [2]
Mr Lomas  [10]
The other counts  [15]
After arrest  [20]
The conviction appeal  [26]
The sentence appeal  [36]
      The appellant’s submissions  [41]
      Discussion  [42]
      The minimum term  [51]
Result  [56]

Introduction

Mr Rajgopaul appeals his conviction and sentence on a variety of charges including attempted murder following a jury trial presided over by Keane J. We commence by setting out the facts, drawing primarily from the Police summary of facts and Keane J’s sentencing notes.[1]

The attempted murder

[1] R v Rajgopaul HC Auckland CRI-2009-092-20927, 20 April 2011.

At approximately 4am in the early hours of 22 December 2009, Constables Cato and Snow were driving past an address in Papatoetoe. They observed an Audi motor vehicle parked down a driveway outside a unit with its emergency lights flashing. They drove down the driveway in their patrol car and proceeded to check the vehicle to see whether it had been subject to any interference. On checking the licence plates they established that the vehicle was stolen.
While they were at the property a Mr Gavin Lomas came out from the unit and commenced speaking to the constables. Constable Cato noticed a sawn off shotgun that was partly covered in the back of the vehicle.
Constable Snow asked Mr Lomas to get his driver’s licence and the key to the vehicle, and Mr Lomas went off to do so. There were in fact two other persons inside the unit, Mr Rajgopaul and a Mr Darrin Court. They had driven the vehicle to the property and they had been in the unit smoking methamphetamine. Messrs Rajgopaul and Court were both wearing yellow fluorescent vests in order to pass themselves off as workmen. Both Mr Rajgopaul and Mr Court, having become aware of the Police presence, slipped out of the unit through the ranchslider doors and jumped from the porch to the lawn in front of the unit. Mr Court left his yellow fluorescent vest inside so only Mr Rajgopaul was wearing a bright yellow vest…

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 Rajgopaul v R

Details

AGLC: Rajgopaul v R [2011] NZCA 593
Case: [2011] NZCA 593
Decision Date: 30 November 2011

CaseChat Overview and Summary

In the case of Rajgopaul v R, the appellant, Nesh Anderan Rajgopaul, appealed against both his conviction and sentence. The central issue in the appeal was the fairness of the trial judge's summing up concerning the identification evidence and the appropriateness of the sentence imposed. The Court of Appeal dismissed the appeal against conviction, finding that the trial judge had fairly presented the defence case and the evidence relied upon. Regarding the sentence, the Court found that while the maximum penalty of 14 years for attempted murder was appropriate, the minimum term of 10 years was excessive. The Court allowed the appeal against sentence to the extent of substituting the minimum period of imprisonment with a breakdown of an eight-year minimum term for the attempted murder count and a two-year minimum term for the charge of discharging a firearm with intent to cause grievous bodily harm. The total non-parole period remained at 10 years, but the allocation of the minimum terms was rectified to apply to each relevant sentence.

Final orders: The appeal against conviction is dismissed. The appeal against sentence is allowed to the extent that the minimum period of imprisonment is quashed and substituted by the following: (a) A minimum period of imprisonment of eight years in relation to the 14-year sentence of imprisonment on the attempted murder count, cumulative on; (b) A minimum period of imprisonment of two years' imprisonment with respect to the four-year sentence of imprisonment on the charge of discharging a firearm with intent to cause grievous bodily harm.

Orders