Sharma v R - [2015] NZCA 468

IN THE COURT OF APPEAL OF NEW ZEALAND

CA202/2015
[2015] NZCA 468

BETWEEN	PRANEEL SHARMA Appellant
AND	THE QUEEN Respondent

Hearing:	24 September 2015
Court:	Harrison, Dobson and Gilbert JJ
Counsel:	G H Vear and J P Delamere for Appellant M D Downs for Respondent
Judgment:	30 September 2015 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

Following a trial before a Judge and jury in the Christchurch District Court, Mr Sharma was found guilty of one charge of assault with intent to injure and two charges of breaching a protection order. Judge Farish convicted and sentenced him to a term of two years and four months’ imprisonment.[1]
[1]R v Sharma [2015] NZDC 5181.
The Judge adopted a starting point of 19 months’ imprisonment for the lead offending, committed on 4 October 2013, of assault with intent to injure and breach of the protection order. The Judge applied an uplift of six months’ imprisonment for the second breach of the protection order on 18 April 2014. A further uplift of three months’ imprisonment was applied to take account of Mr Sharma’s prior convictions for violent offending.
Mr Sharma appeals against this sentence on the ground that it was manifestly excessive. He argues that the Judge made the following errors:
(a)The starting point of 19 months’ imprisonment was too high.
(b)The uplift of six months’ imprisonment for the second breach of the protection order was also too high.
(c)A discount ought to have been allowed for his efforts to rehabilitate himself.

Was the starting point too high?

Mr Sharma and the victim were in a relationship and lived together in Christchurch for approximately two years. The relationship ended in about April 2013, shortly after the birth of their son.
As a result of an incident on 20 April 2013, Mr Sharma was charged with assaulting the victim. A protection order was granted in her favour and it was served on Mr Sharma on 4 May 2013.
On 7 September 2013, when the police went to the victim’s address to serve a summons requiring her to attend court to give evidence on the assault charge, Mr Sharma was found hiding in a bedroom wardrobe in the house. Mr Sharma was arrested for this breach of his bail conditions but he was later re-admitted to bail.
The victim duly attended court on 24 September 2013 in answer to the summons but she declined to give evidence after entering the witness box. The assault charge against Mr Sharma was accordingly dismissed. The Judge stated that there had been an altercation between Mr Sharma and the victim prior to the victim being called to give evidence. Mr Sharma was subsequently charged with attempting to pervert the course of justice as a result of this but he was found not guilty of this charge by the jury and accordingly acquitted.
Having related this background, the Judge described the offending that occurred on…

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 Sharma v R

Details

AGLC: Sharma v R [2015] NZCA 468
Case: [2015] NZCA 468
Decision Date: 30 September 2015 at 10 am

CaseChat Overview and Summary

In Sharma v R, the appellant, Mr Sharma, was convicted of assault with intent to injure, and two charges of breaching a protection order. He was sentenced to a term of two years and four months’ imprisonment by Judge Farish. Mr Sharma appealed against the sentence, arguing that it was manifestly excessive and that the Judge made several errors in the sentencing process. The appeal was heard by the Court of Appeal of New Zealand and dismissed.

The legal issues in this case included whether the starting point of 19 months’ imprisonment for the assault with intent to injure was too high, whether the six-month uplift for the second breach of the protection order was too high, and whether a discount should have been allowed for Mr Sharma's rehabilitation efforts. The Court of Appeal examined the aggravating factors of the offending, such as the home invasion, the nature of the attack, and the vulnerability of the victim. The Court concluded that the starting point of 19 months’ imprisonment was not outside the available range, given the serious nature of the offending and the increased maximum penalty for breaching a protection order.

The Court of Appeal also found that the uplift of six months’ imprisonment for the second breach of the protection order was not excessive, as Mr Sharma had knowingly breached the protection order for the purpose of intimidating the victim. Finally, the Court concluded that the Judge made no error in declining a discount for Mr Sharma's rehabilitation efforts, as he had not yet accepted responsibility for his offending, shown remorse, or made meaningful progress towards rehabilitation.

The appeal was dismissed, and the original sentence was upheld. The Court of Appeal found that the sentence was within the range of the Judge's sentencing discretion and was appropriate given the seriousness of the offending and the need to protect vulnerable victims.

Orders