Randhawa v Police

[2016] NZHC 1909

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-51 [2016] NZHC 1909

IN THE MATTER

of an Appeal against Conviction and

Sentence

BETWEEN

JASKARAN SINGH RANDHAWA Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	16 August 2016
Appearances:	S J Hembrow for the Appellant E J Henderson and K Basire for the Respondent
Judgment:	17 August 2016

JUDGMENT OF NICHOLAS DAVIDSON J (APPEAL AGAINST SENTENCE)

Introduction

[1]      Jaskaran Randhawa was convicted of one charge of common assault and one charge of threatening to kill.  He appeals against the fact that the sentencing Judge did not grant a discharge without conviction.

The offending

[2]      Mr Randhawa and his partner were in a relationship for three months, and were to have a child.  Three days prior to the incident which gave rise to the charges,

his partner ended the relationship.

RANDHAWA v NEW ZEALAND POLICE [2016] NZHC 1909 [17 August 2016]

[3]      On 30 October 2015 at 5.30 pm they ended their shift at their workplace. The appellant asked to speak to his partner and a conversation took place in the appellant’s vehicle that was parked in the car park outside.

[4]      During  that  conversation  Mr  Randhawa  became  agitated  and  aggressive. He began to verbally abuse the victim.   He pinched his partner on the cheek and pulled her forward in an attempt to kiss her.  He grabbed her by the jaw, pulling her forward.   In a third attempt Mr Randhawa pulled the victim by the shirt at which point she stated, “no, stay away”.   These actions resulted in the first charge of common assault.1

[5]      The appellant said “I have always loved you, if I have to kill you I will, I have done it before”.  This resulted in the charge of threatening to kill.2     At that point the victim  got out of the car and into her car which  was parked nearby. The appellant followed her, standing over the car and stated “all you need to do is kiss me”.  She pulled her car door shut and called the police.

Convictions and sentence

[6]      Mr Randhawa and his partner provided conflicting evidence, but His Honour Judge Saunders was satisfied that the charges had been proven and entered convictions.3

[7]      On the charge of assault Mr Randhawa was ordered pay court costs of $130 and witness expenses of $370.4      In respect of the threat to kill $500 in reparation

was ordered, along with a fine of $500 and court costs of $130.

1      Summary Offences Act 1981, s 9.

2      Crimes Act 1961, s 309.

3      Police v Randhawa [2016] NZDC 10862.

4      Police v Randhawa [2016] NZDC 10740.

Appeal

Submissions for the appellant

[8]      The appellant submits that an application for discharge without conviction was tentatively explored by his then counsel, who Mr Hembrow for the appellant tells me did not think it was a likely prospect, and the Judge evidently agreed, so it was not formally advanced.

[9]      The gravity of the offending is submitted not at the serious end of the scale in relation to either charge and it is submitted that a conviction would have an adverse consequence on the appellant’s immigration status. Mr Hembrow says immigration authorities are aware of the offending.

Submissions for the respondent

[10]     There  was  no  application  made  to  grant  a  discharge  without  conviction. There is no evidence before the court to suggest that the consequences of convictions would be out of all proportion to the gravity of the offending.  If visa consequences are raised, it is submitted that the immigration authorities are entitled to and will take into account the offending.  The Court of Appeal has said that it is appropriate for immigration authorities to be able to decide the effect of convictions for themselves

and the Court should not usurp the role of that body.5

Discussion

[11]     An application for discharge without conviction was not really advanced in the  District  Court  in  the  sense  there  was  no  formal  application,  and  thus  no developed submission, but now the appellant asks the court to consider the appeal on

that basis that it was in effect refused.

5      A (CA747/10) v R [2011] NZCA 328 at [30].

[12]     Brown J in Ho v Police, said:6

In the absence of a compelling reason as to why an application was not made in the District Court, it is not usually appropriate for the High Court to entertain an application for a discharge for the first time on appeal.

[13]     The Court cited the judgment of Peters J in Barrington-Nash v Police where a similar issue arose.7    In that case the Her Honour held:

[7]       First, the Appellant did not seek a discharge without conviction from the District Court Judge…There is no affidavit from counsel who appeared for the Appellant at the time, explaining why these matters were not advanced. The explanation now given, from the bar, was that the Appellant did not wish to embarrass his (former) lawyer by raising these matters with him. The consequence, however, is that there is no satisfactory explanation as to why these matters were not advanced to the District Court Judge. In itself that is sufficient to dispose of this matter.

[14]     In Ho Brown J did not accept that the failure to make an application for a discharge without  conviction  was  based  on  an  “indication” from  the sentencing Judge that such an application would be futile.8     That being the case, the Judge did not consider that the appellant provided a satisfactory explanation as to why such an application  was  not  advanced  earlier  and  as  such,  the  appeal  court  should  not entertain the application.9    However, in the event that this finding was incorrect, His Honour went on to consider the appeal on its merits.

[15]     On appeal, the Court of Appeal put to one side the issue of whether it was correct for Brown J to refuse to entertain an application for discharge without conviction  where  there  had  been  no  application  in  the  District  Court,  instead choosing to dismiss the appeal on its merits.10     However, the Court did say that for the purposes of the appeal it would assume that “it may be appropriate to consider granting a discharge on appeal where there are changes in circumstances or fresh

evidence becomes available”.11

6      Ho v Police [2015] NZHC 3156.

7      Barrington-Nash v Police [2012] NZHC 868.

8      Ho v Police, above no 6, at [25].

9 At [26].

10     Ho v R [2016] NZCA 229 at [11].

11 At [11].

[16]     In this case I accept Mr Hembrow’s advice that after enquiry counsel’s only reference to a discharge without conviction was by a tentative enquiry, to which the judge responded in a discouraging way.  There was no application as such, so as to found this appeal.  There is nothing to indicate a good reason the application was not made.  Counsel is experienced and reached a view as to the merits of an application which he reality checked with the judge.

[17]     An appeal on the merits should in such circumstances not be considered unless there is some supervening factor which in the interests of justice requires that. That may be based on a good explanation why an application was not advanced at the  time,  or  some  subsequent  recognition  of  the  impact  of  a  conviction  which warrants consideration.

[18]     However, for completeness, the submission that a conviction would have an adverse effect on the Appellant’s immigration status is not upheld.   It is neither relevant, nor made out on the facts. Although the offending is at the lower end of the scale for offending of its type, the appellant could not demonstrate that the consequences of conviction would be out of all proportion to the gravity of the offending, and I consider the threat to kill was expressed in a sinister way, with reference to the appellant having killed before.

Outcome

[19]     The appeal is dismissed.

…………………………………………….

Nicholas Davidson J

Solicitors:

Raymond Donnelly (Crown Solicitors), Christchurch

S J Hembrow, Riverlands Chambers, Christchurch