Legal Research
Cases
Sunda v Police

Sunda v Police

Case [2019] NZHC 756 9 April 2019

Mandatory Minimum Sentences

Specific Performance

Civil Penalty

Criminal Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-8

[2019] NZHC 756

BETWEEN
KARANVIR SUNDA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 April 2019

Counsel:

E M Bransgrove for Appellant D M Helm for Respondent

Judgment:

9 April 2019

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1] On 5 July 2018, Mr Sunda pleaded guilty to one charge of male assaults female.1 He sought discharge without conviction, principally on the ground that there was a real and appreciable risk that a conviction would result in his deportation and that such a consequence would be out of all proportion to the gravity of his offending.

[2] On 13 February 2019, Mr Sunda’s application was dismissed by Judge Mill in the Wellington District Court; he was convicted and ordered to pay a fine of $1,000.2

Factual background

[3] On the evening of 22 April 2018, Mr Sunda and his wife, the victim in this matter, were at home. She was on the phone with her mother. The victim mentioned

1 Crimes Act 1961, s 194(b); maximum penalty two years’ imprisonment.
2 Police v Sunda [2019] NZDC 2452.

SUNDA v NEW ZEALAND POLICE [2019] NZHC 756 [9 April 2019]

Mr Sunda’s drug habits and he became upset, punching her once in the face before grabbing her by the arm with enough force to break the skin. Mr Sunda punched her again in the face, causing her nose to bleed. He dragged her out of her chair and pulled her into the bathroom to get her to clean the blood off her face. When she called a friend for help, Mr Sunda grabbed her phone from her hand and disconnected the call. He then dragged her back to the bedroom, putting her to bed and telling her to go to sleep. As she tried to get out of bed, Mr Sunda would push her back down.

[4] Eventually, the victim’s friend arrived and took her to the police station to report the incident.

[5] As a result of the assault, the victim, who was 14 weeks’ pregnant at the time, sustained a bloodied nose, a cut inside her mouth, and bruising to her arms and face.

District Court decision

[6] The Judge determined that there were no mitigating circumstances in terms of the offending, finding that it “was sustained violence over a period of time” against his pregnant wife.3 He did, however, note that there were a number of personal mitigating circumstances:4

First of all, you have no previous convictions and therefore are otherwise of good character. You are attending a programme. I have got letters from the programme to say that you are attending that programme and the progress is satisfactory. That is a programme to address violence and I commend you for that.

[7] He further noted that the victim supported a discharge without conviction, that she did not have any concern for her or her daughter’s safety, and no longer wanted…

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 Sunda v Police

Details

AGLC: Sunda v Police [2019] NZHC 756
Case: [2019] NZHC 756
Decision Date: 9 April 2019

CaseChat Overview and Summary

The appellant, Mr Sunda, appeals his conviction and sentence on the basis that the District Court Judge did not properly follow the three-stage test set out in R v Hughes. Mr Sunda also submits that the Judge erred in finding that the assault was sustained and did not represent a momentary lapse of judgement. Mr Sunda argues that the Judge erred in finding that there was only a “possibility of deportation” if he was convicted, as there is a real and appreciable risk of such consequence occurring. He argues that this risk is out of all proportion to the overall level of offending in this case, such that he should have been discharged without conviction. The Crown opposes the appeal, arguing that there was no material error by the Judge in entering a conviction in the circumstances and that the sentence imposed was available and appropriate. The Court finds that the District Court Judge did not give sufficient weight to the mitigating factors in assessing the overall gravity of the offending. The Court also finds that the Judge incorrectly concluded that there was only a possibility of Mr Sunda being deported when there is, in fact, a real and appreciable risk that might happen. The consequences of a conviction in this case is out of proportion to the overall gravity of the offending. The appeal is allowed. Mr Sunda’s conviction is set aside and an order is made that he be discharged without conviction.

Orders