Vohra v Police - [2018] NZHC 3192

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2018-425-000030

[2018] NZHC 3192

BETWEEN
MANOJ VOHRA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 November 2018

Appearances:

S G Vidal for Appellant

R W Donnelly for Respondent

Judgment:

5 December 2018

JUDGMENT OF DUNNINGHAM J

[1] The appellant, Manoj Vohra, pleaded guilty to one charge of a male assaults female on 28 August 2015. He was sentenced on 18 April 2016. At the time, his lawyer sought that he be convicted and discharged. However, Judge M J Callaghan sentenced Mr Vohra to supervision for a period of nine months. He also issued a protection order in favour of the victim under s 123B Sentencing Act 2002 (the Act) and required Mr Vohra to attend a Stopping Violence programme.

[2] Mr Vohra completed his sentence without breach. However, as a result of his conviction, his temporary work visa was not renewed and he was subsequently served with a deportation liability notice. He now seeks to appeal his conviction and sentence on the grounds that the Judge did not consider whether to deal with the matter by way of discharge without conviction and, in all the circumstances, this is a case which meets the criteria for a discharge.

VOHRA v NEW ZEALAND POLICE [2018] NZHC 3192 [5 December 2018]

[3] The appeal was filed out of time and so leave is required for the Court to consider the appeal. This delay is adequately explained by the fact that Mr Vohra first filed his own appeal in the High Court. When counsel was appointed, an issue arose over which Court was the appropriate first appeal Court. An appeal was lodged in the Court of Appeal but, on 1 May 2018, the Court of Appeal issued a judgment dismissing Mr Vohra’s appeal for want of jurisdiction and ruling that the High Court was the correct first appeal Court.1 By that time, his appeal to the High Court had been struck out as no steps had been taken in it. Mr Vohra has actively tried to pursue an appeal as soon as he was aware of the consequences of conviction. No issue is taken by the respondent with leave being granted. Leave is granted to appeal out of time.

[4] Mr Vohra also seeks to introduce evidence which was not before the District Court. It comprises his own affidavit evidence which outlines what has occurred to him post-conviction and evidence from an experienced immigration lawyer as to the effect of the conviction on Mr Vohra’s immigration status. As the evidence is either updating evidence or evidence which should have been before the District Court but was not, it is admitted in the interests of justice.

Background events

[5] Mr Vohra is an Indian national. He married another Indian national on 13 May 2011 and they decided to come to New Zealand. His wife arrived on a student visa, while Mr Vohra came on an open work visa.…

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 Vohra v Police

Details

AGLC: Vohra v Police [2018] NZHC 3192
Case: [2018] NZHC 3192
Decision Date: 5 December 2018

CaseChat Overview and Summary

The appeal against conviction and sentence brought by Manoj Vohra against the New Zealand Police before the High Court of New Zealand at Invercargill was heard on 14 November 2018. Vohra pleaded guilty to an offence of male assaulting female and was sentenced to nine months' supervision. He appeals the conviction on the grounds that the sentencing Judge did not consider the possibility of a discharge without conviction, which he claims was appropriate in this case. Vohra's appeal was filed out of time, but he was granted leave to appeal out of time. He also sought to introduce evidence that was not before the District Court, which was admitted in the interests of justice.

The appeal raises two legal issues: whether there was a material error that led to a miscarriage of justice, and whether the consequences of conviction were out of all proportion to the gravity of the offence. The court found that had Vohra been aware of the potential consequences of a conviction, he would have either pleaded not guilty or actively sought a discharge without conviction, which could have led to a different outcome. The court also found that the consequences of conviction, including the risk of deportation and financial hardship, were out of all proportion to the gravity of the offence. The court exercised its discretion under s 106 of the Sentencing Act and allowed the appeal. Vohra's conviction was set aside, and he was discharged without conviction.

The final orders of the court were that Vohra's conviction is set aside and he is discharged without conviction. The sentence of nine months supervision that has been served is unaltered. The decision has no impact on the granting and subsequent revocation of the protection order made by Judge Brandts-Giesen.

Orders