CHAND v POLICE [2020] NZHC 1367

CHAND v POLICE [2020] NZHC 1367 [17 June 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-0098[2020] NZHC 1367BETWEEN AMITESH CHANDAppellantAND NEW ZEALAND POLICERespondentHearing: 16 June 2020Appearances: J Y Yi for AppellantW N Fotherby for RespondentJudgment: 17 June 2020JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 17 June 2020 at 3 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Meredith Connell, Crown Solicitor, AucklandCounsel: J Y Yi, Auckland[1] The appellant, Mr Chand, appeals against a decision of Judge C S Blackie inthe District Court at Auckland on 5 March 2020.1 The Judge declined Mr Chand'sapplication to be discharged without conviction on one charge each of operating avehicle carelessly, receiving stolen property (over $1,000) and failing to answerDistrict Court bail.2 The Judge fined Mr Chand $400 for the careless drivingoffending, and sentenced him to 60 hours' community work on the receivingoffending, and 40 hours' community work for failing to answer bail.[2] Mr Chand's appeal is unusual in that he seeks to appeal only the refusal of thedischarge on the receiving offending. As with any appeal, however, Mr Chand mustpersuade me the Court below was wrong, and in this case that means wrong to declinea discharge when Mr Chand faced three charges. Subject to that, it is for me to reacha decision on my own view of the merits.3Applicable law[3] A judge may grant a discharge without conviction if the direct and indirectconsequences of conviction would be out of all proportion to the gravity of theoffending.4 In determining whether the consequences would be so disproportionate,the Judge must assess the gravity of the offending having regard to the aggravatingand mitigating factors of the offending and offender; identify the likely direct andindirect consequences of a conviction; and then assess whether the latter are out of allproportion to the former.5Background[4] The charge in respect of careless use of a motor vehicle arose from events on23 April 2019 when Mr Chand was using a cellphone while driving. He veered offthe road, collided with a parked vehicle and caused extensive damage to both vehicles.1 Police v Chand [2020] NZDC 5034.2 Crimes Act 1961, ss 246 and 247(a); Land Transport Act 1998, s 37(1); and Bail Act 2000, s 38.3 R v Taulapapa [2018] NZCA 414 at [18] citing H (CA680/2011) v R [2012] NZCA 198 at[35]–[36].4 Sentencing Act 2002, ss 106 and 107.5 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].[5] The receiving charge arose from events which commenced on 6 May 2019.Early that morning, Mr Chand was returning home from work, driving his mother'scar. What follows is Mr Chand's evidence as to what occurred. En route home,Mr Chand gave a ride to an old acquaintance, Mr Prasad. Mr Prasad and Mr Chandhad a "history", in that in 2017 Mr Prasad had stolen Mr Chand's own car. Apparentlythey resolved to put that in the past, and ended up spending the day together, withMr Prasad promising to share with Mr Chand winnings from pokie machines, ifMr Chand continued to drive him about.[6] Early on 7 May 2019, Mr Chand and Mr Prasad picked up a female associateof Mr Prasad's. At some point there was an argument, culminating in the woman andMr Prasad driving away in Mr Chand's mother's vehicle, and leaving Mr Chand onthe street. Mr Chand walked to Manukau Police Station and reported the incident.[7] On 8 May 2019, Mr Chand and his brother were on their way to Mr Prasad'sparents' house to complain about the theft. Before they got there, Mr Prasad and twoassociates drove past; Mr Prasad stopped; Mr Chand and his brother got in; andMr Prasad apologised and said to make up for this second theft he would giveMr Chand the car he was currently driving as it was the same model as Mr Chand'smother's car. Mr Chand knew the car was stolen as there was a screwdriver in theignition. Mr Prasad instructed Mr Chand on how to start the car with the screwdriver,told him the ownership of the car could be changed, suggested Mr Chand wear gloveswhile driving and also suggested the car could become "legit".[8] Mr Chand drove away in the stolen car, and when apprehended by the Policethat evening in Mission Bay, was driving the vehicle with two passengers.[9] The charge of failing to answer District Court bail arose when Mr Chand failedto appear in July 2019 and a warrant had to be issued for his arrest.District Court decision[10] As I have said, Mr Chand's application to be discharged was in respect of allthree offences. The first matter for the Judge was to determine the gravity of theoffending in the manner referred to in [3] above. In assessing that matter, the Judgefocused on the receiving charge and assessed it as a "relatively serious offence".6 Indoing so, the Judge had regard to the maximum penalty of seven years' imprisonment;the important role receivers' play in theft and burglary offending; the victim'sinterests; that Mr Chand knew the car was stolen; and that the vehicle was recoveredas a result of Police work, rather than Mr Chand coming to his senses.7[11] The consequences of conviction on which Mr Chand relied were risks to hisfuture employment, in particular his aspirations to become a Customs Officer atNew Zealand Customs Service ("Customs"), and the "social stigma" arising fromconvictions.[12] The Judge accepted the convictions were likely to affect Mr Chand's prospectswith Customs and in this the Judge was clearly focusing on the receiving charge. TheJudge was not persuaded, however, that Customs should not know of the receivingconviction in assessing any application by Mr Chand, given a Customs Officer mustbe of the utmost integrity.8 Nor did the Judge consider the convictions would precludeMr Chand finding other employment.9[13] As to social stigma, the Judge thought that went "with the territory" onconviction for any offending but would be short-lived.10[14] Ultimately the Judge was not persuaded the consequences identified were outof all proportion to the gravity of the offending, and he declined to dischargeMr Chand.DiscussionGravity of the offending[15] Counsel for Mr Chand, Mr Yi, contends the Judge erred in assessing the gravityof the offending, as he failed to take into account mitigating factors relating to the6 Police v Chand, above n 1 at [9].7 At [4] and [8].8 At [10].9 At [10].10 At [12].offending and offender. Had the Judge done so, Mr Yi submits the Judge would havedetermined the gravity of the offending as "low".[16] The mitigating factors are Mr Chand's relatively young age of 22; thatMr Chand received the vehicle in what Mr Yi submitted were the exceptionalcircumstances of it being a replacement vehicle for his mother's; that Mr Chand hasno previous convictions; pleaded guilty at the earliest opportunity; is unlikely toappear before the Court again; and his genuine remorse. Mr Yi submitted the Judgeknew of these mitigating factors because he referred to them in sentencing.[17] I accept the Judge did not refer expressly to mitigating factors when assessingthe gravity of the offending, and it is preferable this is done. Regardless, even if Iallow Mr Chand to narrow his appeal as he has, and I take into account those mitigatingfactors, I am not persuaded Mr Chand met the threshold for a discharge withoutconviction on the receiving offending.[18] Mr Chand knowingly accepted a stolen vehicle and, on the evidence beforeme, drove it around for many hours before he was stopped by the Police. This was nota case of Mr Chand driving the vehicle a short distance and then abandoning it,realising the stupidity of his actions. He kept it. For myself, I find the suggestionMr Chand was going to give this vehicle to his mother implausible, given it was nother vehicle and it had a screwdriver sticking out of the ignition. Even allowing forMr Chand's youth, the offending was at least moderately serious, which is largely asthe Judge described it.[19] As Mr Fotherby for the Police submitted, however, whether the offending wasof moderate or serious gravity, the critical issue is whether the consequences ofconviction are out of all proportion. If so, there should be a discharge and, if not, theapplication must be declined.Consequences of conviction[20] As the Judge said, Customs should know of this offending when they assessMr Chand's suitability for training as a Customs Officer. The receiving charge isrelevant to whether potential employers, including Customs, consider Mr Chand to bea suitable candidate. As noted in R v Taulapapa, while a conviction may affect aperson's career, this consequence must usually yield to an employer's right to know,and so cannot usually be considered a consequence "out of all proportion" to thegravity of the offending.11 That is particularly so for a responsible position such as aCustoms Officer.[21] Mr Yi did not press any submission as to "social stigma". I agree with theJudge such could not possibly warrant a discharge for this type of offending.Result[22] I dismiss this appeal.Peters J11 R v Taulapapa, above n 3, at [42(a)].