Sardana v R [2016] NZCA 138 (20 April 2016)

Last Updated: 29 April 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA508/2015 [2016] NZCA 138
BETWEEN	MRINAL SARDANA Appellant
AND	THE QUEEN Respondent

Hearing:	8 March 2016
Court:	Winkelmann, Peters and Collins JJ
Counsel:	J A Westgate for Appellant I R Murray for Respondent
Judgment:	20 April 2016 at 10 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)

[1] Following a jury trial before Judge Phillips, the appellant, Mr Sardana, was convicted of one charge of obtaining possession of property by deception.^[1]
[2] Judge Phillips sentenced Mr Sardana to four months’ community detention; 250 hours’ community work; and to pay reparation of $15,000, being the value of the property obtained; and to pay a further $5,000 as reparation for emotional harm.^[2]
[3] Mr Sardana appeals against conviction and sentence.
[4] The appeal against conviction is brought on two grounds, both of which concern the deception element of the offence. Deception is defined in s 240(2) of the Crimes Act 1961, which we reproduce below. In essence, however, a deception is a misrepresentation.
[5] The first ground of appeal is that the jury’s verdict was unreasonable having regard to the evidence.^[3] In particular, counsel for Mr Sardana, Mr Westgate, submits that there was no or insufficient evidence that possession of the property was obtained by deception.
[6] The second alternative ground is that there has been a miscarriage of justice, as there is a real risk that the outcome of the trial was affected by an error at trial.^[4] In particular, Mr Westgate submits that there can be no certainty the jury was unanimous as to the deception by which possession of the property was obtained, and unanimity was required given that deception is an element of the offence.
[7] Mr Sardana appeals against sentence on the ground that the orders that he undertake 250 hours of community work, and pay reparation of $5,000 for emotional harm, rendered the sentence manifestly excessive.

Background

[8] In early 2014, Mr Sardana befriended Mr and Mrs Arooj, recent immigrants to New Zealand. From the outset, Mr Sardana led Mr and Mrs Arooj to believe that he was wealthy and successful. He bought expensive wine, discussed purported friendships with “Bollywood” actors and famous cricketers, told Mr and Mrs Arooj that he owned several properties and so on.
[9] Mrs Arooj told Mr Sardana that she wished to find work, so that she could return home for a period without recourse to the couple’s savings. In response, Mr Sardana proposed that Mrs Arooj “invest” funds with him — initially $10,000 but later $15,000 — for two weeks, and said that if she did so, she would earn a return of more than $4,000.
[10] In response to questions from Mrs Arooj, Mr Sardana told her that he proposed to gamble with the funds at a casino. She asked what would happen if he lost and Mr Sardana said:

... “I have so much money, this is nothing, you know it’s just peanuts, this small amount is like peanuts.” So in case, I asked him, I said, “What if you lose?” He said, “Its okay I can return it to you, there’s no problem at all. I am also taking my money as well.” ...

[11] Questioned further about this in cross-examination, Mrs Arooj said:

Q. He said he couldn’t guarantee that he would win?

A. No. Not at all.

17. He didn’t say that. You would know yourself as a matter of commonsense though there is no guarantees when it comes to gambling, correct?

...

1. He didn’t guarantee me that he will win in gambling, but he guarantee me that he will return my money you know. If he was taking my money he will return it. It’s just a matter of you have got my investment, my share, my pool in his money you know, and I asked him what if you will lose. He said I will give you back, I have money, I don’t have any problem because these are peanuts.

[12] Mrs Arooj subsequently gave Mr Sardana $15,000 in cash. He then left Dunedin, ostensibly for Auckland. Two days later Mr Sardana telephoned and said he needed at least another $4,000, failing which the $15,000 would be lost. By this time, Mrs Arooj had ascertained that Mr Sardana was not in Auckland but in Macau or Hong Kong. Mrs Arooj subsequently deposited the $4,000 to an account Mr Sardana had nominated.
[13] Mr Sardana failed to repay any of the funds that Mrs Arooj had given him, let alone any part of the promised return.

[14] Mr Sardana was charged as follows:

By deception and without claim of right obtained possession of property, namely $15,000 cash.

[15] Mr Sardana was also charged with causing loss by deception in respect of the $4,000.^[5]
[16] The jury convicted Mr Sardana of the first charge and acquitted him of the second.

Relevant provision

[17] Section 240 of the Crimes Act 1961 provides:

240 Obtaining by deception or causing loss by deception

(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—

(a) obtains ownership or possession of, or control over, any property ... ; or

...

(d) causes loss to any other person.

...

(2) In this section, deception means—

(a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—

(i) knows that it is false in a material particular; or

(ii) is reckless as to whether it is false in a material particular; or ...

Appeal against conviction

[18] Mr Westgate submits that the jury could not have been satisfied the property was obtained by deception as defined in s 240(2)(a) because, at the time she gave Mr Sardana the $15,000, Mrs Arooj knew that he was going to gamble and that there was a risk of loss.
[19] Alternatively, as “by deception” is an element of the offence, Mr Westgate submits (correctly) that the jury was required to be unanimous as to what constituted that deception, and there can be no certainty as to that unanimity because the representation(s) relied upon were not particularised in the charge.^[6]

Discussion

[20] It is clear from the evidence that Mrs Arooj knew that Mr Sardana proposed to gamble with her funds. However, her evidence was that she gave him the money on the basis of his representations that he had the means to repay her if he lost and that he would do so.
[21] These were the representations that Crown counsel, Mr Power, relied upon in closing as constituting the deception for the purposes of the charge. The relevant part of the closing address is as follows:

He tells her there’s no risk, he tells her and you look at pages 32 to 34, for example, of the notes of evidence, the risk is all his, “The risk is all mine.” He guarantees he’ll return her money to her, it’s only peanuts, “I’ve got money.” Her money goes into his pool, and with his money. $15,000, which is peanuts and it culminates; the relationship he’s fostered with she and her husband, the things they’ve been told, culminates with these representations, the Crown says, these false representations. “The risk is all mine, you can guarantee you’ll get the money back, I’ve got money, it’s only peanuts, it’s in a pool of money with mine.” The Crown says he culminates these false representations and she foolishly, let’s face it, naively, hands over 15,000 cash. Then what happens? You may note of course, he says, “Oh, take me to Dunedin, take me to the Airport,” and once he’s in Dunedin, “Oh, no, no, it’s okay, you go home, I’ll catch a cab.”

[22] It must have been clear to the jury from this that the Crown relied on the representations that Mr Sardana made as to having the means and willingness to repay as establishing the deception element of the charge.
[23] The Judge’s summing-up is also relevant.
[24] The Judge directed the jury that it was for the Crown to prove each element of the offence beyond reasonable doubt and he then referred them to the question trail he had prepared, which set out the elements of the offence as follows:

CHARGE 1: Obtaining by deception

...

Note: On all issues the burden of proof beyond a reasonable doubt lies on the Crown.

1.1 Has the Crown made you sure that Mr Sardana obtained, directly or indirectly, possession of, or control over $15,000, the property of Ms Arooj?

...

1.2 Has the Crown made you sure that Mr Sardana did so by deception?

“Deception” means: Mr Sardana made false representations, intending to deceive Ms Arooj knowing the representations to be false in material particulars.

...

1.3 Has the Crown made you sure that Mr Sardana did so without claim of right?

...

[25] The Judge then addressed the jury on the issue of deception as follows:

[26] Secondly, has the Crown made you sure that Mr Sardana obtained that property (that possession) by deception? That is by false representations intending to deceive her, knowing the representations to be false in material particulars.

[27] The Crown case is simply this. That over a period of time, not a long time, but over a period of time, the defendant went out of his way to assure and convince the witness, Arooj, that he was a man of substance, a man involved in property and in business. A man who could establish her on the business path. It is the Crown’s case that those representations were false. Again the witnesses that I outlined to you before and the exhibits that had been put in, put to you by the Crown, were for establishing the correct position of the defendant, as a ‘man of straw’. The Crown’s case then is that because and directly as a result of those representations, when the defendant said that he could gamble the $15,000 and make her a profit, she acting on those representations, together with the representation by him that he would cover any losses if there were losses, and that he had of course the asset backing to do that, the Crown says that was the act of deception.

[28] The defence says that is just not so. The defence says that these representations and the actions of the defendant prior to obtaining the money are matters that the witness, Arooj, has put together in order to satisfy her husband that she was acting in a semi-business way. That is what in fact she was doing, was making money available to the defendant knowing that it was going to be gambled and was prepared to take the risk. She knew that there could be losses and it was only when the loss happened that it all fell apart. So the defence case is that there was no deception at all.

[26] Given these matters, we do not consider the jury could have been in any doubt as to the Crown case on the issue of deception, nor of the need to be unanimous that the Crown proved its case on that element of the offence.
[27] Going on from that, there was clear evidence on which the jury could find that Mrs Arooj had given Mr Sardana the money on the basis of those representations.
[28] We dismiss the appeal against conviction accordingly.

Appeal against sentence

[29] In the District Court it was common ground between counsel for Mr Sardana and counsel for the Crown that a starting point of between 12 and 15 months’ imprisonment was open to Judge Phillips.^[7]
[30] The Judge referred to the fact that Mr Sardana was a first offender of this kind and that he was able to make immediate reparation of at least $15,000.^[8] In the absence of a suitable home detention address, the Judge sentenced Mr Sardana to four months’ community detention; 250 hours’ community work; and to pay reparation of $15,000, being the value of the property obtained; and a further $5,000 as reparation for emotional harm.^[9]
[31] On appeal, Mr Westgate submitted that the requirement of 250 hours’ community work and the reparation of $5,000 for emotional harm rendered the sentence manifestly excessive.
[32] We do not accept this submission. As Mr Murray for the Crown submitted, four months’ community detention plus reparation of $15,000 does not equate to a starting point of, say, 12 months’ imprisonment (allowing for any mitigating factors). We consider the sentence the Judge imposed was within the available range and we do not propose to vary it.

Result

[33] The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law, Wellington for Respondent

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^[1] Crimes Act 1961, s 240(1)(a).

^[2] R v Sardana [2015] NZDC 17814 at [13] and [14] [Sentencing notes].

^[3] Criminal Procedure Act 2011, s 232(2)(a).

^[4] Section 232(2)(c).

^[5] Crimes Act, s 240(1)(d).

^[6] Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [173].

^[7] Sentencing notes, above n 2, at [11].

^[8] At [11] and [12].

^[9] At [13] and [14].