R v Balbir DC Auckland CRI-2009-009-17502 [2011] NZDC 1395 (30 August 2011)

Last Updated: 3 October 2016

IN THE DISTRICT COURT AT AUCKLAND

_{CRI-2009-009-017502}

THE QUEEN

v

_{BALBIR BALBIR}

Hearing: 30 August 2011

Appearances: S Petricevic for the Crown

D Reece for the Prisoner

Judgment: 30 August 2011

_{NOTES OF JUDGE P A CUNNINGHAM ON SENTENCING}

[1] Balbir Balbir appears for sentence today having pleaded guilty to count 1 in the indictment, namely a charge of theft. The date of the offence was somewhere between the end of July and the end of October in 2009. From the outset the theft was acknowledged by Mr Balbir, but there was dispute about the amount that was taken.

[2] On 30 June this year there was a disputed facts hearing at which the victim gave evidence and I am told that when she had almost completed her evidence there was an agreement that the initial amount being sought of approximately $230,000 had come down to $100,000. Mr Reece took instructions on that figure and Mr Balbir agreed to accept responsibility for having stolen items to the value of

$100,000. I mention that because now that there is further information before the

Court in terms of a reparation report, and other material including what Mr Balbir said to the probation officer who interviewed him for the pre-sentence report, there is

R V BALBIR DC AK CRI-2009-009-017502 30 August 2011

some doubt about whether that is the correct figure. I will come back to this aspect of it shortly.

[3] The facts that Mr Balbir has pleaded guilty to is that he agreed to be the trustee for a security box owned by a Ms Shetti in which cash and gold bullion had been deposited in the BNZ Bank in Auckland city. He managed to erase the secondary trustee signature from the authority sheet on the box, and in September he entered the bank and used his trustee letter to withdraw $NZ69,000 and gold bullion worth $31,000.

[4] Although the summary of facts does not say so, Mr Balbir was arrested at Christchurch airport when he was attempting to leave New Zealand. He had a considerable amount of cash on him and he also had at least one item linking him to that security box at the bank.

[5] The position of the Crown is that the gold bullion has been recovered, or that gold bullion to the value of $4000 has been recovered, plus cash in the amount of approximately $30,000.

[6] The pre-sentence report says that Mr Balbir sent $70,000 to his family in

India, and if he has pleaded guilty to having stolen cash and bullion to the value of

$100,000 the amount recovered plus the amount sent to India looks about right. However, a reparation report that has been prepared by the Department of Corrections Probation Service for this sentencing makes the picture look a little less clear in that the victim says that the gold has been recovered, casting some doubt on whether or not there was gold bullion in the sum of $31,000 in my view, but she says that 69,000 cash has not been recovered. It is unclear whether or not that takes into account the cash that the police recovered from Mr Balbir at the airport. On that scenario it might mean that the victim is out of pocket somewhat less than $69,000 and it could be almost half of that.

[7] I have come to the view after discussing the matter fairly fully with counsel today, particularly Mr Balbir’s counsel, Mr Reece, that adjourning the matter for further investigation is probably not going to make the situation any more clear, and

I have decided that I should proceed to sentence Mr Balbir on the basis that he acknowledges that he took cash and bullion to the value of $100,000, and it would appear that approximately $34,000 of that has been recovered.

[8] The circumstances in which this offending occurred are most unusual. Mr Balbir is an Indian national. He came to New Zealand in 2008 to study. He already had an engineering qualification from his home country, and he has completed a business management course in New Zealand. While here he worked in an Indian restaurant, and it would appear that in that context he befriended the partner or de facto partner of the woman who is the victim. Clearly he got to know her and it would appear that she was good to him in a sense of befriending him, having him to her home. But why she then made him the trustee of a security box with such a large amount of money and gold bullion in it is a little bit puzzling.

[9] There has been some suggestion from Mr Balbir that he was not the only person involved in taking items from this security box, a suggestion that does not seem implausible to me.

[10] However, by pleading guilty he has accepted responsibility for his part in this theft. Mr Reece has mentioned that the victim had some reason to keep this money secret, namely she was going through divorce proceedings and did not want to disclose the existence of the items in the security box to her husband and/or the Family Court in which there were relationship property proceedings. So it is certainly a rather unusual picture; however, whatever reasons that person had to put money out of the reach of either her husband and/or the Family Court could never justify Mr Balbir taking what did not belong to him.

[11] I have, however, come to the view that to an extent temptation was put in Mr Balbir’s way, and it is a factor I take into account when adopting a starting point for this offending.

[12] There is no guideline judgement on dishonesty offending of this sort, and I thank counsel for the cases that have been submitted to me for some guidance, however in the end I have to determine a starting point based on the aggravating

features of this offending, which clearly are the breach of trust involved Mr Balbir was effectively made the trustee of this security box, the erasing of the secondary signature clearly shows some premeditation and planning, and the amount taken,

$100,000, even if it is somewhat less than that it is still at least $70,000 and that is a significant amount of money. It is apparent from reading the victim impact statement that in addition to the monetary loss there has been a real harm to her in terms of the breach of trust.

[13] Taking all those factors into account I adopt a starting point of 20 months or

one year and eight months’ imprisonment.

[14] In my view, further deductions can be made for Mr Balbir’s situation. It is apparent that prior to this offending he had done nothing to come to the attention of the criminal law in New Zealand, and I am not being told he has ever come to the attention of the criminal law in India. He is still young, he is aged 24 years now, but he was aged 22 years at the time of the offending. Like many overseas students who come to New Zealand, he finds himself somewhat isolated here, although he has had some financial support from his family in India he has not found it easy to make strong friendships in New Zealand, he has no family support here, and no support from other people to whom he is close.

[15] That is apparent because he is not suggesting I should sentence him to home detention. Through his counsel he has made it clear that he is simply not in a position to serve a sentence of home detention because even if he had suitable accommodation he does not have people who could support him on a sentence of home detention. For example, one needs someone to do shopping and attend to matters of that nature for you, and Mr Balbir says that he has no one who could do that. That is a great pity because if home detention were an available option it certainly would have been one that was open to him.

[16] When I take into account his age and his personal circumstances I have come to the view that I should give a further 10 percent discount from 20 months to account for those factors, which reduces the term to 16 months.

[17] I turn to the matter of the guilty plea. In the written submissions the Crown suggested it has come at a late stage and should be in the vicinity of 10 to 15 percent, but Ms Petricevic has said this morning that she does not disagree with the submission made by Mr Reece that it should be the full 25 percent, and that is because there has been an acknowledgement of what occurred by Mr Balbir right from the outset and it has simply been the amount that has taken the time it has to resolve this matter.

[18] So deducting 25 percent or four months I reach an end sentence of 12

months’ imprisonment, and that is the sentence I impose.

[19] I ask that on the warrant of commitment that it reads that Mr Balbir is to be seen by the prisoner doctor on admission, and I say that because there is a signal in the pre-sentence report that he has indicated that prison will be a difficult sentence for him, and I acknowledge that. Mr Reece has made it plain that Mr Balbir has struggled to cope with this, and although he has not received any medical attention it is apparent that he has been quite down about his situation, something that is not surprising given all the circumstances.

[20] I should note that in reaching the end sentence I have taken into account the fact that prison will be a difficult sentence for this man.

[21] So that is the sentence I impose, 12 months’ imprisonment, of which you will serve half, Mr Balbir, and I will now grant the Crown application to dismiss count 2 in the indictment pursuant to s 347 Crimes Act.

[22] All cash in the possession of the Crown or police and any other items seized by the police at Christchurch airport from Mr Balbir said to belong to the victim will be forfeited.

P A Cunningham

District Court Judge