Bijwe v Police HC Auckland CRI-2011-404-000181 [2011] NZHC 1430 (2 November 2011)

Last Updated: 9 November 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2011-404-000181}

BETWEEN ASHISH BIJWE Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 1 November 2011

Appearances: M Read for Appellant

B Hamlin for Respondent

Judgment: 2 November 2011 at 4:30 PM

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 2 November 2011 at 4.30 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Crown Solicitor, Auckland

Copy to: M Read, Auckland

BIJWE V NEW ZEALAND POLICE HC AK CRI-2011-404-000181 2 November 2011

[1] The appellant pleaded guilty to one charge of common assault and one charge of male assaults female. The victim in both cases was a woman he had formerly had a relationship with. On 17 May 2011 Judge de Jong in the District Court at Auckland discharged him without conviction in relation to the common assault but on the other count convicted him and ordered him to come up for sentence if called upon within nine months.

[2] The appellant appeals against the conviction and sentence on the male assaults female count. He argues that he should have been discharged without conviction on that charge also.

Preliminary matter

[3] At the outset of the hearing Mr Read sought leave to refer to an affidavit the appellant had sworn on 26 October 2011 annexing a memorandum he had prepared for his former counsel on 18 May 2010. The memorandum provided details of the appellant’s relationship with the victim.

[4] While this Court has a discretion to hear and receive further evidence on an appeal it may only do so if that further evidence could not, in the circumstances, have reasonably been adduced at the hearing: s 119(3) Summary Proceedings Act

1957. Why the appellant prepared the memorandum for his former counsel on 18

May when he had been sentenced on 17 May is not explained. But in any event the information contained in the memorandum is clearly information that was available to the appellant at the time of sentence. The information contained in that memorandum could have been adduced for sentencing purposes either by consent or at a disputed fact hearing if indeed the material was relevant. I declined the application to adduce the further evidence for the purposes of the appeal as it did not satisfy s 119(3).

[5] In any event the further information in the memorandum as to the length of

the appellant’s relationship and the circumstances of the relationship with the victim

was not particularly relevant to the incidents of assault that the appellant was before the Court for sentence on. The actual length of the relationship and their past dealings was largely irrelevant. What was relevant was the behaviour of both parties on the days of the assaults and particularly the actions of the appellant at that time: Iosefa v Police.[1]

Background facts

[6] The appellant accepts that, in relation to the first incident in August 2009, he went to the victim’s house in Sandringham. The victim asked him to leave. He refused. He pushed her into her bedroom, pushing her around the neck area. The victim tried to pull away grabbing at the appellant’s glasses. The victim threw her mobile phone across the room. The appellant picked it up and threw it in her direction, hitting her. The appellant left the room and returned with a large carving knife. He held up the knife threatening to cut himself. The victim calmed him down and he left.

[7] A month later, on 20 September 2009 at 2.00 p.m., the appellant was at the victim’s address. The victim took a shower. The appellant walked into the bathroom while she was having the shower saying it was about time he saw her naked. The victim covered herself with the shower curtain and managed to get him to leave the bathroom. She went to the bedroom to get dressed. She closed the bedroom door. Before she was able to get dressed the appellant came into the room and pushed her onto her bed by grabbing her wrist. They sat on the bed for about 30 minutes. Each time the victim tried to get up and leave the appellant would pull her back down. Eventually she managed to go to her children’s bedroom. The appellant followed her there and again threw her on the bed. As she fell she hit her head on the wall. The appellant then climbed on top of her and attempted to remove the towel she had wrapped around herself. As she struggled with the appellant he bit her on her arms and shoulders. Again, eventually, the victim managed to calm the appellant down and convinced him to leave the property. As a result of the assault the victim

_{received bruising to her arms and shoulders.}

[8] At the time of the offending the appellant was a 26 year old student. He is an Indian National. His father is a doctor, a general surgeon with his own practice as a consultant in Mumbai. The appellant was enrolled in a Diploma of Event Management at the Auckland University of Technology. The appellant is a member of the Auckland Baptist Tabernacle Church. The church has become the centre of his social network. Once he completes his qualifications at AUT his intention is to look for employment in the areas of internet website design, public relations, marketing and events management. The appellant is concerned that the conviction will affect his residency status and ability to stay in New Zealand, which would have the consequential effect of affecting his ability to complete his studies at AUT.

The sentencing process

[9] The Judge was aware of and acknowledged the appellant’s concern as to the consequences of a conviction. He noted the submission made in support of the appellant’s case for a discharge without conviction. The Judge considered the evidence of the appellant’s pastor and counsel and also the psychiatric report the appellant had obtained privately. The psychiatric report suggested the appellant was somewhat immature, naïve and perhaps unsophisticated. The appellant had also attended a Stopping Violence programme. Judge de Jong was clearly aware that the likely consequences of the conviction were that he would have to leave New Zealand. He noted:

... it is not unreasonable to expect that might be the result [a conviction will result in you having to abandon your studies and return to India] and that you are no longer able to study here. There is some suggestion you might be able to complete your studies but whatever the case might be with regard to your studies it is very likely you will not be able to live in New Zealand.

[10] Despite that, the Judge considered that, given the circumstances of the second incident and the fact that it was in itself a second incident of offending, it would send the wrong message to the community to discharge the appellant on both counts.

[11] In support of the appeal Mr Read raised a number of points. First he submitted the Judge erred in characterising the relationship as a short-term one of about two months. However, for the reasons given above the length of the relationship was not of particular relevance in this case.

[12] Next, Mr Read submitted that the Judge failed to take into account the full details of the anger management and violence prevention programmes completed by the appellant. He submitted the Judge was wrong to say the appellant had completed

12 sessions with a programme provider because in fact he had completed not one, but two different programmes, the second being a one-to-one programme of 12 individual sessions. Again, with respect to this submission, even if the Judge was wrong in the detail it is not a matter of any moment. The important point is that the Judge was aware the appellant had voluntarily attended such sessions and had apparently completed them successfully. No doubt that was a factor the Judge took into account when he imposed the sentence he did rather than directing supervision.

[13] Next Mr Read submitted the Judge erred by taking into account an irrelevant consideration, namely by stating that:[2]

... My view is it is up to the immigration authorities to determine whether you are a fit, proper and otherwise suitable person to live in this country. That is not the choice of this Court.

[14] Mr Read submitted that it was irrelevant what Authority should determine the immigration status of the appellant. What was relevant was the likely outcome of the determination of the immigration authorities and the effect of the conviction on that outcome. He submitted the Court had failed to take that into account.

[15] In expressing the matter in the way he did the Judge was doing no more than referring to the line of authorities, including the Court of Appeal decisions of

_{R v Foox}[3] _{and Mu v Police}[4] _{in which the Court had acknowledged that a conviction}

was a factor to be considered by the relevant Minister or Authority, but obviously left the ultimate decision as to immigration to the Minister or Authority. The Judge was plainly aware the effect a conviction might have on the appellant in this case. He accepted it was very likely the appellant would not be able to remain in New Zealand in the long term.

[16] Next, Mr Read criticised the Judge’s reference to the appellant’s

vulnerabilities. That must be seen in context. The Judge stated:[5]

... Your personality and character are described by the pastor and psychiatrist in a way which suggest you have ongoing vulnerabilities. Those vulnerabilities concern this Court about your future and future relationships.

By reference to the dictionary definition of vulnerable Mr Read submitted that vulnerability was a concept more appropriately applied to a victim. While I accept that, again in context, the Judge was doing no more than expressing a reservation as to the appellant’s character and personality, which was justified having regard to the psychiatrist’s report in particular. The psychiatrist described the appellant as a simplistic and naïve young man coming from a social system which was probably more paternalistic. He said the appellant:

... acknowledges and ... views constructs such as love, relationships, intimacy and respect in very black and white, simplistic terms.

[17] The psychiatrist went on to refer to his relatively unsophisticated personality style and recommended a mentoring type of approach. The Judge was right to hold concerns for the appellant’s ability to cope with relationship issues in the future. There is nothing in this ground of appeal.

[18] Finally Mr Read submitted generally that the Judge erred in the exercise of his overall discretion. The matters the Court is required to take into account when considering whether to discharge without conviction are provided for in ss 106 and

107. In R v Hughes[6] the Court of Appeal accepted that s 107 confirms the

essentiality of the disproportionality test, namely that at the end of the day the Court must be satisfied that the direct and indirect consequences of conviction would be

out of all proportion to the gravity of the offence before it may consider the exercise of the discretion conferred by s 106. Application of the disproportionality test requires consideration of all relevant circumstances of the offence, the offending and the offender together with the wider interests of the community (including the factors required by the Sentencing Act 2002 to be taken into account under ss 7, 8, 9 and

10). Having taken account of those factors the Court must then consider whether the s 107 test is met and whether it is appropriate that an order for discharge be made.

[19] In the present case the Judge was well aware that one of the likely consequences of a conviction would be that the appellant would not be able to remain in New Zealand. While the appellant is studying in New Zealand and may not be able to complete his course, it cannot be said he has made his life in New Zealand. His parents still live in India. His sister also lives overseas. Before coming to New Zealand the appellant had studied in his home country. It could not be said to be a particular hardship for him to be required to leave New Zealand if indeed that was the outcome.

[20] Against that there are the circumstances of the offence. The circumstances of the second offence confirm that it was properly charged as male assaults female. It was the second incident of domestic violence between the appellant and the victim at her home within a short time. There are sinister overtones in that the appellant confronted the victim when she was naked and vulnerable in the bathroom and then prevented her from dressing and from leaving her bedroom for about half an hour before then later erupting into the violence which involved throwing her onto a bed and biting her. The Judge was correct to take into account the need not to send the wrong message to the community by discharging without conviction in those circumstances. The Judge was entitled to consider the real problem of domestic violence and the need to consider the purposes and principles of the Sentencing Act, in particular denunciation and deterrence of such behaviour.

[21] While there may well be the consequences to the appellant discussed above, the Judge was entitled to conclude that in the circumstances of the offending such consequences would not be out of all proportion to the gravity of the offending in this case.

Result

_{[22] The appeal is dismissed.}

Venning J

---

[1] Iosefa v Police HC Christchurch CIV-2005-409-000064, 21 April 2005 (Randerson J) at [29].
[2] _{NZ Police v Bijwe DC Auckland CRI-2009-040-028147, 17 May 2011 at [16].}
[3] _{R v Foox [2000] 1 NZLR 641.}
[4] Mu v Police CA262/03, 24 October 2003.
[5] _{NZ Police v Bijwe at [17].}
[6] R v Hughes [2008] NZCA 546.