Ude-Shankar v Police - [2019] NZHC 1938

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2019-406-13

[2019] NZHC 1938

BETWEEN
JOSHUA UDE-SHANKAR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 August 2019

Counsel:

L A Murdoch for Appellant A R Goodison for Crown

Judgment:

9 August 2019

JUDGMENT OF CHURCHMAN J

[1] The appellant, Mr Ude-Shankar, pleaded guilty in the Blenheim District Court to one charge of assault on a person in a family relationship.1 On 8 July 2019, Judge Tuohy declined his applications for discharge without conviction under s 106 of the Sentencing Act 2002 (the Act)2 and for name suppression.3 He was sentenced to nine months’ supervision.

[2] Mr Ude-Shankar appeals his conviction and sentence on the basis that the Judge:

(a)erred by taking into account irrelevant considerations and not taking into account relevant considerations; and

1      Crimes Act 1961, s 194A; maximum penalty two years’ imprisonment.
2      New Zealand Police v Ude-Shankar [2019] NZDC 13127.
3      New Zealand Police v Ude-Shankar [2019] NZDC 13587.

UDE-SHANKAR v NEW ZEALAND POLICE [2019] NZHC 1938 [9 August 2019]

(b)erred in his application of law.

[3] Mr Ude-Shankar appeals the refusal to grant him name suppression on the basis that the Judge:

(a)erred by not taking into account the effect on him and on the victim and her family of publication;

(b)was wrong in finding that publication would not cause him extreme hardship.

[4]The Crown opposes the appeal.

Background

[5] At the time of the offending, Mr Ude-Shankar and the victim had been in a relationship for about eight months.

[6] In the early hours of 30 March 2019, Mr Ude-Shankar and the victim got into an argument. He became aggressive and verbally abusive towards the victim. Fearing for her safety, she punched him and escaped to a nearby address.

[7] Occupants of that property accompanied the victim back to the address where they confronted Mr Ude-Shankar. He got into a fight with them while the victim went to her bedroom and tried to sleep.

[8] Mr Ude-Shankar entered the bedroom, approaching the victim where she lay in bed and punching her hard about eight times to her torso. At the first opportunity, the victim fled the house.

Fresh evidence

[9] Mr Ude-Shankar seeks leave to adduce further affidavits from himself, his partner and her mother on the basis that it is in the interests of justice for the High Court to receive this evidence and it satisfies the principles for the admission of fresh evidence.

[10] The respondent opposes the admission of the three affidavits on the basis that the evidence is not “fresh” as it could have been put before the District Court and, in fact, some of it was in the form of attachments to defence sentencing submissions.

[11] Section 335 of the Criminal Procedure Act 2011 (the CPA) provides that an appeal Court may receive new evidence in respect of an appeal against conviction or sentence. The proposed evidence must also be sufficiently fresh…

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.

Keep reading for free

Create a free CaseChat account to read Ude-Shankar v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NZHC 1938
Decision Date: 9 August 2019

CaseChat Overview and Summary

The appellant, Mr Ude-Shankar, appealed against his conviction and sentence for assault on a person in a family relationship, as well as the refusal to grant him name suppression. The Blenheim District Court had declined his applications for discharge without conviction and for name suppression, sentencing him instead to nine months’ supervision. The appeal was heard by Churchman J in the High Court of New Zealand, Blenheim Registry.

The key issues were whether the District Court Judge erred in assessing the gravity of the offence and the consequences of conviction under section 107 of the Sentencing Act 2002, as well as whether he erred in refusing to grant name suppression under section 200 of the Criminal Procedure Act 2011. The Crown opposed the appeal.

The District Court Judge had assessed the gravity of the offence as moderately serious, taking into account Mr Ude-Shankar's previous convictions, his engagement in anger, violence and alcohol counselling, and the support he had from the victim and her family. The Judge acknowledged that the conviction might make it more difficult for Mr Ude-Shankar to obtain work in social services, but was not satisfied that it would bar him from doing so. The Judge was satisfied that the consequences of conviction were not out of all proportion to the gravity of the offending and, accordingly, did not accede to the s 106 application. The High Court found no error in the Judge's approach and dismissed the appeal against the refusal to grant a discharge without conviction.

As for the refusal to grant name suppression, the Judge noted that it was a very late application and determined that it did not reach the statutory threshold. The High Court found that the Judge was correct to conclude that the threshold of extreme hardship was not made out and dismissed the appeal against the refusal to grant name suppression.

The appeal was dismissed in its entirety, upholding the decisions of the District Court.

Orders