Police v Varun [2017] NZDC 7175 (19 January 2017)

Last Updated: 22 August 2017

EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT AUCKLAND

CRI-2016-004-009827 [2017] NZDC 7175

NEW ZEALAND POLICE

Prosecutor

v

[ANIKA VARUN]

_Defendant

Hearing:	19 January 2017
Appearances:	Sergeant J Pitcon for the Prosecutor S Houliston for the Defendant
Judgment:	19 January 2017

_{NOTES OF JUDGE S J MAUDE ON SENTENCING}

[1] Ms [Varun], you are appearing today for sentence in respect of what is from a legal perspective a moderately complex charge, therefore I read it. It is that you posted a digital communication, namely public and private Facebook messages and photos, with intent that it cause harm to [the victim], where posting that communication would cause harm to an ordinary and reasonable person in the position of that person and by posting that communication caused serious emotional stress to her.

[2] The facts that have been placed before me and are not contested set out in detail what has occurred, and I do not propose to read them in Court today, but they are set out in a summary of facts presented by the police that you have pleaded guilty

_{in respect of.}

NEW ZEALAND POLICE v [ANIKA VARUN] [2017] NZDC 7175 [19 January 2017]

[3] By way of summary of what has occurred is that you have in respect of the new wife of your former husband created a Facebook account, chosen to use the name of [Peeyush Vishal], purporting that person to be a Fijian-Indian male in his

40s and you have then progressed to lure, and I use the word loosely, the sending of photographic material of that person nude to that address.

[4] You have then used that photographic material to distribute to others. You have in the course of venting your anger and sense of loss engaged her son in the sense that you have communicated with him and told him that it is his mother, not you, that is the whore. You have lured your victim to Fiji purporting that she would be meeting this man in Fiji. The summary of facts as I say is there to be read.

[5] I have a probation officer’s report that is designed to inform me about you for the purposes of sentencing. The probation officer describes in the report that you gave a detailed account of your long term sense of grievance between yourself and your victim. The probation officer has said that you were emotional as you reviewed the circumstances of your offending; however, the probation officer also observes that your self-reporting of your victim’s slander towards you suggests that any remorse you have is somewhat superficial.

[6] The probation officer describes that you were asked why you sent nude pictures of your victim to her son and that you stated he needed to know that, “His mum is the slut, not me,” and I regret earlier in this decision I used the word whore rather than slut, but plainly the words are to the same effect.

[7] I have read carefully what is a detailed submission that has been prepared by your lawyer. It does the very best to put your circumstance before me. It describes that you have mitigating circumstances: that you are 35 years old; that you reside in [suburb deleted] with your husband in a rental property and are solely responsible for the care of your two children, a son aged [age deleted] and a daughter aged [age deleted]; that your daughter has been diagnosed with [medical condition deleted] and associated developmental conditions; that you have no previous convictions; that you were cooperative with the police; that you entered a guilty plea at the first opportunity that you had; that you indicated a willingness to participate in restorative

justice with your victim; and that you have conveyed remorse to your victim by way of writing via the police to her.

[8] Your counsel urges that the imposition of a modest amount of community work hours together with supervision is an appropriate outcome and has submitted that in terms of reparation, and your victims as I have indicated earlier have indicated a not insignificant financial loss, you have no means and are simply unable to meet any reparation costs.

[9] The maximum sentence that I can impose upon you for this offending is a sentence of two years’ imprisonment. I not only sit as a Judge in the District Court in its criminal work, I also sit as a Family Court Judge, so I have some insight in terms of the behaviour that has gone on in your situation and a Judge in this Court or in the Family Court always has some sympathy with the victims of separation, but it does not excuse behaviour that foreseeably would have caused great distress, shame and harm, and if you apply your mind to what you have done you have done far more than simply express your grief. You have set out to victimise somebody else.

[10] What has played out is offending in the context of a dispute between an ex-spouse and a husband’s new spouse. The behaviour that you displayed was destructive, vindictive and it had the effect of perpetrating shame. I have to say that I am appalled to read that you think that [the victim’s] son should have been informed that your view was that she was a slut. Not only have you set about to harm your direct victim who you see as having behaved badly towards you but you have set about doing a significant amount of harm to an innocent child.

[11] You have two young children in your care and I would have thought in that circumstance you would have some empathy in terms of the need that a child or young person has to think well of his or her parent. You have not previously offended. That does not surprise me because your behaviour has arisen out of a relationship situation.

[12] I do not intend to imprison you and I do not intend to impose home detention upon you. What is necessary however is for there to be a punishment and what is

also necessary is for you to participate in a Living Without Violence programme that teaches and informs you about how to contain the grief or loss or anger that you feel and to channel it in the correct and not the incorrect directions. I have read carefully what your victim has said and there can be no doubt that she has suffered significantly as a result of your actions. What is done in a criminal jurisdiction of the Court is not able to in reality compensate for that.

[13] Today I convict you. I sentence you to 100 hours’ community work and I place you on supervision for a period of 12 months to undertake such Living Without Violence and other programmes as directed by the probation officer assigned to you.

[14] I turn now to the issue of reparation. What I do with relation to the issue of reparation is direct that there be a one hour reparation hearing and a Judge alone trial date before me, that can be in this Court or the North Shore District Court. I am not sure that I am in this jurisdiction in this Court in the foreseeable rostering but I am in the North Shore District Court.

[15] A reparation hearing to determine reparation of one hour, before me, is to be allocated on 3 March 2017 at 10.00 am at the North Shore District Court if the victims, having heard me as to the practicality of the obtaining of an award seek to pursue it. If they do not then they are to advise the police so that the hearing can be vacated.

S J Maude

District Court Judge