The Queen v Brijesh Kumar Gupta

IN THE COURT OF APPEAL OF NEW ZEALAND

CA236/01

THE QUEEN

BRIJESH KUMAR GUPTA

Hearing:	26 February 2002
Coram:	Blanchard J Tipping J Durie J
Appearances:	G J King and C J Milnes for Appellant M F Laracy for Crown
Judgment:	26 February 2002

JUDGMENT OF THE COURT DELIVERED BY DURIE J

The appellant appeals against an effective sentence of six years imprisonment imposed after pleading guilty prior to depositions to sexual violation by digital penetration, assault with intent to commit sexual violation, detention with intent to have sexual intercourse and indecent assault. More particularly the appellant was sentenced to six years imprisonment on the lead charge of sexual violation, and concurrently, five years for the abduction, four years in respect of the assault with intent and one year on the indecent assault.
The offending related to a single but extended episode in Wellington inner city over the early hours of a Sunday and involved two unrelated complainants. The question on the appeal is whether having regard to the totality of the offending and the relevant circumstances the effective sentence was manifestly excessive.
The incident giving rise to the charge of indecent assault arose first and as follows. The first complainant, who was in her mid-20s, was a patron in a nightclub. The summary of facts encapsulates three separate indecent assaults. On each occasion the appellant approached the complainant and brushed his hand across her buttocks. On each occasion the complainant responded, making it clear that she did not consider the actions to be inadvertent and that the appellant was harassing her. After the first touching the complainant identified the appellant to security staff and he was removed from the premises. Later the complainant would describe the appellant’s actions as predatory.
All subsequent charges relate to the second complainant and follow on from the appellant’s eviction from the nightclub. The charge of assault with intent to commit sexual violation arose this way. The second complainant, also in her mid-20s was accosted by the appellant shortly after she had begun to walk home from another nightclub. The appellant pestered and then followed her and ignored her requests to be left alone. He became more forceful with her in the street and grabbed her. As she struggled to push him away he variously molested her by kissing her, trying to put his hand inside her shirt and trousers and grabbing at her breasts and crotch. He removed his erect penis from his trousers and rubbed it against the complainant, attempting to masturbate himself while pinning her against the wall. The complainant began screaming and managed to break free from the appellant and run away.
The appellant pursued her, for about a kilometre, purporting to want to apologise. The charges of abduction and sexual violation followed from after he eventually caught up with her, grabbing her from behind and placing a hand over her mouth and nose. The appellant forced the complainant behind a fence and threw her onto the ground. He lay on top of her still blocking her breathing by covering her mouth and nose. The appellant pulled down the complainant's trousers and underpants and took out his erect penis. Despite her pleading with him the appellant lay on her and inserted a number of fingers into her vagina repeatedly. While doing so he grabbed at her internally pinching her around the genitals. He also licked and kissed her, including exposing the complainant’s breasts and kissing them. The assault ended when a car pulled up nearby.
The appellant is a 25-year-old Indian man who has been in New Zealand for two years. He has worked in this country as a chef and apparently sends all his earnings to his family in India. He speaks little English.
The sentencing Judge noted the appellant’s early guilty plea and his lack of previous convictions while in New Zealand, where he has been for two years, as mitigating factors. She also considered the harshness of imprisonment for one with friends and family all in India (he also spoke limited English) and his prospective deportation.
She equally considered the aggravating features, that the appellant had assaulted two women that night, and that the offences as a whole represented a prolonged episode of indecency and violence.
The Judge then formed the view that deterrence was the uppermost consideration in view of the recent spates of attacks on young women in public places in the city. On that basis, and considering the totality of the offending she took a starting point of eight years imprisonment and indicated that she would give little weight to personal circumstances. However, she did acknowledge the harshness of imprisonment for the appellant and made an allowance for the guilty plea. The appellant was sentenced to six years imprisonment, the Judge attaching that lead sentence to the sexual violation count.
The basis of the appeal as it was argued was essentially two-fold, that the starting point was excessive being more appropriate to rape, and that the Judge’s deterrence based approach to sentencing meant that no adequate account was taken of mitigating factors and personal circumstances.
On the question of the starting point both counsel acknowledged the principle in R v Hassan [1999] 1 NZLR 14, (1998) 16 CRNZ 18 that where one continuing incident involved a commission of separate offences the sentencing Judge is to assess the overall criminality of the offending. That case also refers to a similar type of offending and similar facts. For the appellant Mr King argued that the eight year starting point adopted in this case was more appropriate for rape. He submitted a proper approach was to consider two to four years as representing an appropriate sentencing range for sexual violation short of rape. Allowing for this case as at the top of that range and adding one year having regard to the totality of the offending would still produce a starting point of only five years.
We incline rather to the submission for the Crown that it was in fact open to the Judge to have begun at a point even beyond eight years. We are of opinion that the case represents a most serious instance of prolonged stalking and separate and serious assaults. While the incidents are connected they are also separate so that no question of overcharging arises.
The appellant indecently assaulted the first complainant in a persistent manner, there being three separate occurrences. He then focused on his second victim assaulting her, pursuing her further to then physically and indecently assault her with some force and after she escaped and fled, nonetheless pursuing her for a considerable distance. The appellant then seized the second complainant, had covered her mouth, had dragged her behind a fence and repeatedly penetrated her with several fingers. A particularly aggravating feature which added to the degrading way in which the appellant’s victim was treated was that the appellant had grabbed the complainant internally with his fingers and then pinching her around her genitals. All this was as close to rape as might have been and but for an approaching vehicle rape may well have been the likely result. In these circumstances we think the difference between the starting point taken in this case and that which might have been taken for rape, some two years higher, is, if anything, lenient.
We see no inconsistency between this case and Hassan where, after allowing for a guilty plea, a six year sentence was imposed.
The second basis for the appeal is that the Judge’s focus upon deterrence prevented the Judge from taking a full and proper account of the mitigating factors and the appellant’s personal circumstances.
We consider first that robust deterrent sentences have long been recognised as proper in order for a Court to deal with developing social aberrations. The Judge in this case was in a position to observe the growing prevalence of this type of offending and in our view she had not overestimated the need for deterrence in this instance. That need has been emphasised by Parliament’s 1993 increase in maximum sentences for sexual violation. Nor are we satisfied that the Judge in fact failed to take proper account of mitigating factors and personal circumstances. There were only two mitigating factors, the guilty plea and the lack of previous convictions during the appellant’s two year period in New Zealand. The Judge noted both of those factors. The appellant’s personal circumstances related to his isolation in New Zealand and his almost certain deportation in time. We can see no basis for giving weight to the prospect of deportation at least in this case. The need to deter entrants to the country from this sort of offending must be no less than the need to deter others. In all we consider the two years allowed took adequate account of the mitigating factors and the appellant’s personal circumstances.
The appeal is dismissed.

Solicitors

Crown Law Office, Wellington

[2002] NZCA 4

26 February 2002