Sardana v The Queen - [2016] NZCA 138

IN THE COURT OF APPEAL OF NEW ZEALAND

CA508/2015
[2016] NZCA 138

BETWEEN	MRINAL SARDANA Appellant
AND	THE QUEEN Respondent

Hearing:	8 March 2016
Court:	Winkelmann, Peters and Collins JJ
Counsel:	J A Westgate for Appellant I R Murray for Respondent
Judgment:	20 April 2016 at 10 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)

Following a jury trial before Judge Phillips, the appellant, Mr Sardana, was convicted of one charge of obtaining possession of property by deception.[1]
[1]Crimes Act 1961, s 240(1)(a).
Judge Phillips sentenced Mr Sardana to four months’ community detention; 250 hours’ community work; and to pay reparation of $15,000, being the value of the property obtained; and to pay a further $5,000 as reparation for emotional harm.[2]
[2]R v Sardana [2015] NZDC 17814 at [13] and [14] [Sentencing notes].
Mr Sardana appeals against conviction and sentence.
The appeal against conviction is brought on two grounds, both of which concern the deception element of the offence. Deception is defined in s 240(2) of the Crimes Act 1961, which we reproduce below. In essence, however, a deception is a misrepresentation.
The first ground of appeal is that the jury’s verdict was unreasonable having regard to the evidence.[3] In particular, counsel for Mr Sardana, Mr Westgate, submits that there was no or insufficient evidence that possession of the property was obtained by deception.
[3]Criminal Procedure Act 2011, s 232(2)(a).
The second alternative ground is that there has been a miscarriage of justice, as there is a real risk that the outcome of the trial was affected by an error at trial.[4] In particular, Mr Westgate submits that there can be no certainty the jury was unanimous as to the deception by which possession of the property was obtained, and unanimity was required given that deception is an element of the offence.
[4]Section 232(2)(c).
Mr Sardana appeals against sentence on the ground that the orders that he undertake 250 hours of community work, and pay reparation of $5,000 for emotional harm, rendered the sentence manifestly excessive.

Background

In early 2014, Mr Sardana befriended Mr and Mrs Arooj, recent immigrants to New Zealand. From the outset, Mr Sardana led Mr and Mrs Arooj to believe that he was wealthy and successful. He bought expensive wine, discussed purported friendships with “Bollywood” actors and famous cricketers, told Mr and Mrs Arooj that he owned several properties and so on.
Mrs Arooj told Mr Sardana that she wished to find work, so that she could return home for a period without recourse to the couple’s savings. In response, Mr Sardana proposed that Mrs Arooj “invest” funds with him — initially $10,000 but later $15,000 — for two weeks, and said that if she did so, she would earn a return of more than $4,000.
In response to questions from Mrs Arooj, Mr Sardana told her that he proposed to gamble with the funds at a casino. She asked what…

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.

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Details

Case: [2016] NZCA 138
Decision Date: 20 April 2016 at 10 am

CaseChat Overview and Summary

Mrinal Sardana appeals against both his conviction and the sentence imposed by Judge Phillips. Sardana was convicted of obtaining possession of property by deception. He was sentenced to four months’ community detention, 250 hours’ community work, and to pay reparation of $15,000, being the value of the property obtained, and a further $5,000 as reparation for emotional harm. Sardana appeals on two grounds concerning the deception element of the offence, and on the basis that the sentence is manifestly excessive. The appeal against conviction is dismissed as the jury could have been satisfied that the deception element was established. The appeal against sentence is also dismissed as the sentence imposed was within the available range.

The court began by considering the appeal against conviction. The appeal was brought on two grounds, both of which concern the deception element of the offence. The first ground was that the jury’s verdict was unreasonable having regard to the evidence. The second ground was that there has been a miscarriage of justice, as there is a real risk that the outcome of the trial was affected by an error at trial. The court dismissed the appeal against conviction, finding that the jury could have been satisfied that the deception element was established. The court found that the jury could have been in no doubt as to the Crown case on the issue of deception, and that there was clear evidence on which the jury could find that Mrs Arooj had given Mr Sardana the money on the basis of those representations.

The court then considered the appeal against sentence. The appeal was brought on the basis that the requirement of 250 hours’ community work and the reparation of $5,000 for emotional harm rendered the sentence manifestly excessive. The court dismissed the appeal against sentence, finding that the sentence imposed was within the available range. The court found that four months’ community detention plus reparation of $15,000 did not equate to a starting point of, say, 12 months’ imprisonment (allowing for any mitigating factors). The court did not propose to vary the sentence imposed.

The appeal against conviction and sentence is dismissed.

Orders