Keshwan v R [2012] NZCA 4 (7 February 2012)

Last Updated: 17 February 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA808/2011 [2012] NZCA 4

BETWEEN KRISHAN KESHWAN Applicant

AND THE QUEEN Respondent

Telephone Conference: 23 December 2011

Counsel: B J Hart for Applicant C A Brook for Respondent

Judgment: 7 February 2012 at 2.30 pm

JUDGMENT OF ELLEN FRANCE J

The application for bail is dismissed.

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REASONS

[1] Following a telephone conference on 23 December 2011, I declined Mr Keshwan’s application for bail pending his appeal against sentence. However, as I advised counsel at the time, I was unable to provide formal reasons. This judgment records my decision and the reasons for declining bail.
[2] Krishan Keshwan was sentenced on 10 November 2011 in respect of three charges of theft, one charge of driving dangerously, and one charge of robbery.[1] He pleaded guilty to all three offences although the guilty plea for the robbery charge was not entered until the morning his trial was to commence. He was sentenced to a term of 34 months imprisonment. The robbery charge was treated as the lead offence. Mr Keshwan appeals against his sentence.
[3] Mr Keshwan has applied under s 70 of the Bail Act 2000 for bail pending the hearing of his appeal. I personally have considered the application under s 393(2)(d) of the Crimes Act 1961. The test to be applied is that in s 14 of the Bail Act.
[4] On appeal it will be argued that a sentence of home detention should have been imposed. The focus will be on a psychiatric report of 21 December 2011 which suggests that the offending was influenced by “depression based poor judgment”. Mr Hart was not acting for Mr Keshwan at sentencing so there is no explanation as to why a psychiatric report was not obtained prior to sentencing despite the lengthy delay (almost two years) between the offending and sentencing.
[5] In the limited time available to me, it is not possible or appropriate to reach any firm views about the strength of the appeal. However, at least on a preliminary basis, there appears to be some force in the submissions of the Crown in opposition to bail that, even if the sentencing judge, Judge David Harvey, was aware of the matters in the psychiatric report, home detention was not necessarily available. It is relevant in that context that the term of imprisonment imposed included an uplift for the fact that Mr Keshwan offended whilst on bail. Certainly, the circumstances are not such as to make this a case warranting the displacement of the statutory presumption against bail in s 14 of the Bail Act.
[6] In terms of the other considerations in s 14, the sentence is not particularly short and time is available to hear the appeal on either 28 or 29 February 2012.
[7] For these reasons, I have concluded that the interests of justice do not warrant a grant of bail. The application for bail is dismissed.

Solicitors:
Crown Law Office, Wellington, for Respondent

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[1] R v Keshwan DC Auckland, CRI-2009-004-1153, 10 November 2011.