Sharma v R
[2015] NZCA 468
•30 September 2015 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA202/2015 [2015] NZCA 468 |
| BETWEEN | PRANEEL SHARMA |
| AND | THE QUEEN |
| Hearing: | 24 September 2015 |
Court: | Harrison, Dobson and Gilbert JJ |
Counsel: | G H Vear and J P Delamere for Appellant |
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 4 October 2013 as follows:
[6] Now after you had been acquitted by the jury, by the Court rather, on 24 September, on 4 October you made a concerted effort to gain entry into her home, [the victim’s] home. She did not want you there. She had tried to shut the windows. She had basically tried to barricade herself in but you forced your way in through a sliding door. You then assaulted her initially by pushing her to the floor quite hard and she hurt her hip and her shoulder. You then grabbed her as she tried to flee from you through the kitchen. You grabbed her around the neck. You grabbed her around the throat. You put her into a choker hold. You were dragging her down the hallway. At one stage she said you had hold of her hair and her arm.
[7] As a result she said that she was losing consciousness. She thought that she was going to faint. She could not speak. She also had carpet burns to her left elbow as a result of you dragging her down the hallway and she also had swelling and tenderness around her neck which was seen by the doctor the following day. She also had some bruises on her body as well as the carpet burn that I have described.
[8] Eventually, though, she was able to break free from your hold and you left but before leaving you took the phone that she had in her left hand which she was trying to call the police on and you smashed it against the wall, the whole purpose being that she would not be able to contact the police…
Leaving aside the breach of the protection order, Ms Vear acknowledges the following aggravating features of the charge of assault with intent to injure:
(a)Home invasion – it resulted from forced entry into the victim’s home after she had attempted to “barricade” herself in. Mr Sharma initially attempted to get into the house through a window but the victim managed to push him back out. He then went to a locked sliding door and forced it open despite the victim’s attempt to prevent the door from sliding by placing a piece of wood in its path.
(b)Nature of the attack – this was a serious and sustained attack. The victim was placed in a “choker hold” obstructing her airways to the point where she almost lost consciousness.
(c)Vulnerability of the victim – the victim was a woman living alone.
The Judge considered that the appropriate starting point for the assault with intent to injure was 15 months’ imprisonment. She added four months to take account of the fact that the attack was in breach of the protection order. This took the overall starting point to 19 months’ imprisonment.
Ms Vear referred to several High Court authorities to support her submission that the overall starting point should have been no higher than 15 months’ imprisonment for both offences. Because this type of offending occurs in such a wide range of circumstances, there is little utility in surveying numerous High Court authorities to determine whether the starting point adopted in a given case was appropriate.
In any event, the most comparable of the High Court cases is Teka v Police, a decision which supports the starting point adopted in the present case.[2] In Teka, the offender grabbed the victim, threw her onto the floor and began to strangle her, restricting her breathing. The assault ceased when the police intervened. The victim sustained bruises but no lasting injuries. On appeal to the High Court, a starting point of 15 months’ imprisonment was substituted for the two years adopted in the District Court.
[2]Teka v Police HC Auckland CRI-2009-404-253, 7 September 2009.
The assault in Teka did not occur in breach of a protection order. The starting point of 15 months’ imprisonment was therefore directly in line with the starting point of 15 months adopted in the present case before consideration of the breach of the protection order.
The uplift of four months’ imprisonment to take account of the fact that this assault occurred in breach of the protection order cannot be criticised. It is important to note that in September 2013, before the present offending occurred, Parliament increased the maximum penalty for breaching a protection order from two to three years’ imprisonment.[3] Parliament plainly intended that increased penalties should be imposed by the Courts for breaches of such orders, reflecting society’s condemnation of this type of offending and the need to protect vulnerable persons. Cases decided before this change to the law must now be viewed with caution.
[3]Section 11(1) of the Domestic Violence Amendment Act 2013.
Given the aggravating features of this offending, home invasion, a sustained attack involving strangulation and a vulnerable victim for whom a protection order had been issued, we are not persuaded that the overall starting point adopted of 19 months’ imprisonment was outside the available range.
Was the uplift for the second breach of the protection order too high?
Following the assault on 4 October 2013, the victim relocated to Auckland with the assistance of the police and Victim Support Services. The Judge described the events which led to the second breach of the protection order as follows:
[10] You then began to contact the complainant leading up to Christmas saying that you wanted to see her and your son, apologising for your behaviour, promising her that things would be different, promising her that you would not behave in that way again. Unfortunately, that was short-lived. Despite your visit to Auckland over the Christmas period you were then asked to leave, you were drinking, you were acting in an aggressive manner towards her although no charges resulted and she made it very plain that she did not want to have any contact with you.
[11] Leading up to the incident in April you had again been trying to contact her so that you could see your son for his birthday. She was adamant that that was not going to happen because she was fearful of you. She had actually left her address. She had ceased the tenancy on that address, so she was that fearful, and had left to go to Hastings or down south for a period of three weeks. On the day that she returned, when she was emptying out her home, trying to move address so that you would not be able to find her you turned up at her property. You drove up the driveway. I accept what she said to the jury. You drove right up the driveway to about two or three metres away from where she was standing and you stayed in your car. She immediately went inside, got on the phone to the police and came back out. As soon as you saw her on the phone you reversed out of the driveway and left.
[12] Your explanation when you were arrested by the police was that you were interested in that she was having a garage sale and wanted to see what she was selling. The jury rejected that and I reject that as well. That was a totally implausible explanation for your presence and you knew that you were not welcome and you knew that there was a protection order in place. The whole purpose that I see in you going to the property on that day was simply to intimidate her, to let her know that you knew where she was and that she was not able to escape you despite her having left Auckland.
The Judge characterised this second breach of the protection order as serious psychological intimidation:[4]
There was no violence in relation to that breach in April but in my view it was a sustained effort by you, a serious psychological breach by imposing upon the complainant the view that you knew where she lived and that she was not going to escape you.
[4]At [26].
Ms Vear submits that the Judge overstated the seriousness of this offence and that the uplift of six months’ imprisonment for it was manifestly excessive. She points out that Mr Sharma had visited the address previously with the victim’s consent and had purchased some items for the house while he was in Auckland. Ms Vear also notes there was some ongoing communication by text after Christmas.
However, this does not undermine the Judge’s conclusion that Mr Sharma came to the house in flagrant breach of the protection order, knowing that the victim was trying to escape him and did not want to see him. The Judge was entitled to find that he did this for the sole purpose of intimidating the victim. Viewed in context, this was a serious breach of the protection order. Having regard to the increased maximum penalty for breaching a protection order, an uplift of six months’ imprisonment cannot be criticised in all the circumstances.
Again, the High Court authorities to which Ms Vear referred do not assist. In Love v Police, an uplift of three months’ imprisonment was upheld for breaching a protection order by making telephone calls and sending text messages.[5] In Drinkwater v Police, an uplift of four months’ imprisonment for breach of a protection order and possession of an offensive weapon, a screwdriver, was held to be “well within the available range”.[6] In Pukepuke v Police, the offender threatened the victim in breach of a protection order, causing her to feel intimidated and scared.[7] The threat was “I better [get] all my belongings back or you know what I’ll do to you”.[8] Cooper J considered that the uplift of four months’ imprisonment imposed in the District Court for this breach could not be criticised.[9] The offending in each of these cases was quite different to the present. Further, the appropriate uplift in any given case must reflect totality considerations.
Was the Judge wrong not to allow a discount for Mr Sharma’s rehabilitation efforts?
[5]Love v Police [2014] NZHC 2643.
[6]Drinkwater v Police [2013] NZHC 1036 at [38].
[7]Pukepuke v Police [2014] NZHC 1194.
[8]At [11].
[9]At [24].
The Judge noted that Mr Sharma had undertaken various courses while in prison. These were a parenting course, an anger management programme for fathers, alcohol and drug misuse programmes, a problem gambling education session and courses to assist in obtaining employment. However, the Judge did not allow any discount for this because Mr Sharma had not accepted responsibility for his offending and had not shown any remorse. Ms Vear submits that this was a material error and that a 10 to 15 per cent discount should have been applied for this.
While Mr Sharma’s attendance at these courses may be commendable, none directly addressed the underlying cause of his offending against female partners and his risk of re-offending in a similar way has not reduced as a result. Mr Sharma has not yet accepted responsibility for his offending; he lacks insight; he continues to display a concerning sense of entitlement; and he shows no remorse. It is clear from the probation officer’s report that Mr Sharma has made no meaningful progress towards rehabilitation and, despite his attendance at these courses, his risk of re-offending remains high.
Mr Sharma did not respond to earlier assistance for anger management. In June 2008, he was convicted of assaulting a former partner with intent to injure her. Despite the imposition of a special condition requiring him to address anger management issues, soon after his release Mr Sharma assaulted his flatmate with intent to injure him. That was in May 2009, little more than two months after the expiration of his earlier sentence.
Although it will often be appropriate to recognise steps taken towards rehabilitation, it appears that Mr Sharma has not yet started down that path. We consider that the Judge made no error in declining a discount for this in the exercise of her discretion.
Conclusion
We are not persuaded that the Judge made any error in her sentencing approach or in her assessment of the relevant factors. Mr Sharma’s offending was serious. Given his history of similar offending, a stern sentencing response was required. The Judge was right to impose a sentence that was sufficient to recognise the significant harm that this type of offending causes to the community and the need to protect vulnerable victims from it. Particularly having regard to the recent significant increase in the maximum penalty for breaching protection orders, we are satisfied that the end sentence was within the range of the Judge’s sentencing discretion. The appeal must accordingly be dismissed.
Result
The appeal is dismissed.
Solicitors:
Public Defence Service, Waitakere for Appellant
Crown Law Office, Wellington for Respondent
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