CHAUDHARY v NEW ZEALAND POLICE [2021] NZHC 898

CHAUDHARY v NEW ZEALAND POLICE [2021] NZHC 898 [27 April 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000030[2021] NZHC 898UNDER Criminal Procedure Act 2011BETWEEN ROHIT CHAUDHARYAppellantAND NEW ZEALAND POLICERespondentHearing: 27 April 2021Appearances: C Anyon-Peters for AppellantS Kim for RespondentJudgment: 27 April 2021ORAL JUDGMENT OF VENNING JSolicitors: North Shore Public Defendant, AucklandMeredith Connell, Auckland[1] Rohit Chaudhary pleaded guilty to one charge of assault on a person in a familyrelationship. Judge A M Manuel declined his application for a discharge withoutconviction and instead imposed a sentence that he was to come up for sentence if calledupon within the next 12 months.1 Mr Chaudhary appeals against the decision todecline his application for a discharge without conviction.[2] The victim and Mr Chaudhary had been married for six years and had twochildren. Just after 6.00 pm on 19 February 2020 Mr Chaudhary returned home fromwork. He apparently became angry following a disagreement about his proposal totake his son to India to see his mother and slapped the left side of the victim's faceusing an open hand. He then dragged the victim by her hair across the bedroom yellingat her to leave the address. The victim left the address and ran to a neighbouringaddress and called the Police.[3] As a result of the assault on her the victim received a bruise to her lower backand suffered some redness and a slight swelling to her face as a result of the slap.[4] In dismissing the application for a discharge without conviction Judge Manuelassessed the gravity of the offending as moderate. She also assessed the consequencesof a conviction on his possible future employment as moderate. She then concludedthat Mr Chaudhary had failed to establish the consequences outweighed the gravity ofthe offending. She considered the gravity and consequences to be proportionate ratherthan out of all proportion. For that reason, the Judge dismissed his application fordischarge.[5] In support of the appeal Ms Kim submits that the Judge erred in her assessmentof the gravity of the offending by overstating the gravity of the offence itself andplacing insufficient weight on the rehabilitative steps Mr Chaudhary had taken and theremorse he had shown since the offending. Counsel referred to the Court of Appealjudgments of Z v R and Mathieson v Police2 in particular, to support the submission.Counsel submitted that if the Judge had taken account of Mr Chaudhary'srehabilitative efforts and remorse, then she must have initially categorised the1 New Zealand Police v Chaudhary [2020] NZDC 27372.2 Z v R [2012] NZCA 599; and Mathieson v Police [2019] NZCA 406.offending as serious to have reached the view it was moderate after taking account ofMr Chaudhary's rehabilitative efforts. She submitted it was not serious offending.[6] An appeal against a refusal to discharge without conviction is an appeal againstboth conviction and sentence. It is for the appellate Court to make its own assessmentof whether the criteria for discharge without conviction are met.3[7] Section 107 of the Sentencing Act 2002 provides guidance for the applicationof a discharge without conviction:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unlessthe court is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.[8] The Court of Appeal has also approved the following approach to applicationsfor discharge without conviction:(a) first, assess the gravity of the offending. This involves considerationof the seriousness of the actual offending, but also includes anyaggravating and mitigating factors that apply to the offender;(b) next identify the direct and indirect consequences of a conviction; and(c) finally, apply the statutory test of whether those consequences are outof all proportion to the assessed gravity of the offending.[9] In the case of Mathieson relied on by the appellant Mr Mathieson and thevictim had been in a relationship for three years.4 They had an argument over analleged infidelity. Mr Mathieson grabbed the victim by the jaw with both hands. Hedesisted but then shortly after as the argument continued repeated the gesture. He alsothreatened to kill the victim. The victim suffered a sore head and neck with visiblebruising to the front of her neck under her chin.3 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].4 Mathieson v Police, above n 2.[10] Mr Mathieson's charges were referred to the Family Violence Court. Heultimately pleaded guilty to the charges of male assaults female and threatening to kill.By the time he had entered the guilty pleas Mr Mathieson had commenced aCommunity, Alcohol and Drug Services programme and had taken steps to be enrolledin a Stop Violence programme. Following his guilty plea he had case review andmonitoring appearances on further occasions. On each occasion the feedback waspositive. Nevertheless, the District Court Judge assessed the actual offending to bemoderately serious and did not appear to make an adjustment to the initial assessmentof moderately serious for Mr Mathieson's rehabilitative efforts. The Court of Appealultimately allowed a second appeal and noted there were a number of relevantmitigating factors that applied to Mr Mathieson:(a) at the time of sentencing he was a 40 year old who only had oneprevious conviction for careless driving when he was 19;(b) he had been in constant employment all his adult life;(c) he had completed courses addressing the causes of his offending andappeared to display considerable insight into it;(d) he was remorseful and offered to participate in restorative justice so hecould apologise directly; and(e) the impetus for undertaking rehabilitative courses came from himbefore any formal engagement with the Court.[11] The Court of Appeal concluded in his case that the District Court Judge hadfailed to apply the correct approach in her assessment of the overall gravity of theoffending by failing to take into account the very positive mitigating factors. If theCourt had done that the correct conclusion would have been that the gravity of theoffending was of low seriousness.[12] While of course each case is different there are a number of similar features inthe present case. The offending in the present case was confined to one brief instancewith no permanent physical effect on the victim. Although counsel, Ms Anyon-Petershas referred to previous domestic call-outs there are no previous convictions for thistype of offending by Mr Chaudhary. Mr Chaudhary was 28 at the time of theoffending. His only previous conviction was for careless use of a motor vehicle. MrChaudhary had entered a guilty plea at a relatively early stage of the case reviewprocess. He was genuinely remorseful for his actions and had attended a successfulrestorative justice conference where he was supported by the victim, his wife. At thatconference the victim expressed her forgiveness and the parties have reconciled. MrChaudhary also successfully completed a 20 week Living Without Violenceprogramme and 100 hours of voluntary community work. As noted, the victim nowsupports Mr Chaudhary's application.[13] While Judge Manuel suggested that in assessing the offending as moderate shehad considered mitigating factors, I agree with Ms Kim's submission that if that wasso, then she must have assessed the initial offending as high, given the number ofmitigating factors required a significant reduction for the purposes of the exercise, andthe Judge had concluded that overall the offending was moderately serious. As noted,the offending was not of such high seriousness. At most, without taking account ofmitigating factors, the offending itself might be described as moderate but when themitigating factors are taken into account I agree with counsel's submission that thegravity of the offending must be regarded as between moderate and of low seriousness.[14] I then turn to the assessment of the consequences of conviction. The Judge hadaccepted there was a real and appreciable risk a conviction may make it more difficultfor Mr Chaudhary to obtain a job and assessed the consequences to his futureemployment as moderate. Ms Kim seeks to rely on that aspect of the Judge's sentence.However, as noted, this Court is entitled to review that aspect as well in order todetermine if the consequences are out of all proportion.[15] Mr Chaudhary's case before the District Court was that he would find itdifficult to find employment, to travel overseas, to apply for a mortgage, loan orfinancial assistance. I agree with Judge Manuel's assessment that those last matterswere aspirational but speculative and the real focus was on the risk a conviction mightaffect his employment.[16] At the time of the offending Mr Chaudhary was working in a food outlet. Hehas qualifications in cookery to a Level 5 Diploma. After the offending, but before hehad been dealt with by the Court, he gave up that job to travel to India. He now saysthat a conviction will affect the prospect of him obtaining employment in thehospitality industry. There is however no evidence in relation to that, apart from hisstatement.[17] Mr Chaudhary has also said that he had been trying to become an owner-driverfor two years (from December 2018) and that he had been interviewed for anowner/driver role with New Zealand Couriers but when he told them of the impendingCourt case his application was declined. There is however no independent evidencethat that was the basis for their decision or any written material to that effect. MrChaudhary provided a job description for the role but no letter of declinature oranything of that kind. The job description refers to the need for a current and "clean"licence, (whatever that might mean), and a D licence, which it does not appear MrChaudhary has. Notably Mr Chaudhary does not say whether he disclosed hisconviction for careless use to them and if so, what the reaction to that was. Given MrChaudhary had that relatively recent conviction from September 2018 for careless useit is likely, as the Judge observed, that that conviction would have been a more relevantconsideration.[18] Given the type of employment opportunities that Mr Chaudhary is likely topursue, I consider the proper assessment of the consequences to Mr Chaudhary of aconviction to be between low and moderate. A relevant factor I would expect anemployer to take into account and consider would be the sentence in this case, whichputs the offending in context.[19] In the circumstances I am not satisfied that it can be said that the consequencesof conviction are out of all proportion to the gravity of the offence in this case.Result[20] For those reasons, which are slightly different to those of the District CourtJudge, I have come to the same conclusion that a discharge without conviction is notwarranted in this case. The appeal is dismissed.__________________________Venning J