Manikpersadh v R [2011] NZCA 28 (23 February 2011)

Last Updated: 1 March 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA691/2010 [2011] NZCA 28

BETWEEN ASHVEER MANIKPERSADH Appellant

AND THE QUEEN Respondent

Hearing: 14 February 2011

Court: Stevens, Potter and Miller JJ

Counsel: E Orlov and S Malaviya for Applicant M D Downs for Respondent

Judgment: 23 February 2011 at 11.30 am

JUDGMENT OF THE COURT

The application for special leave to appeal is granted on the following question of law:

Whether at [55] of the judgment on appeal (Manikpersadh v New Zealand Police HC Auckland CRI-2010-404-252, 28 September 2010) the High Court Judge correctly identified and applied the test on which an appellate Court will intervene in a sentencing judge’s decision to impose a sentence of imprisonment as opposed to home detention.

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REASONS OF THE COURT
(Given by Potter J)

[1] Mr Manikpersadh seeks special leave under s 144(3) of the Summary Proceedings Act 1957 to appeal his sentence of four months imprisonment on two charges of causing injury while driving with excess blood alcohol under s 61(1)(b) of the Land Transport Act 1998. The Crown opposes leave.
[2] The applicant, a 19-year-old student at the time, crashed into another car while driving through a red light at the intersection of Symonds Street and Wakefield Street in Auckland in the early hours of 28 February 2010. He had been drinking and his blood-alcohol level was 223 milligrams of alcohol per 100 millilitres of blood. (The legal limit for a person under 20 years of age is 30 milligrams per 100 millilitres.) Both occupants of the car he struck received serious injuries and are suffering ongoing physical and financial loss. Their vehicle was written off.
[3] The applicant, a first offender, entered early guilty pleas to the charges. He was sentenced in the District Court at Auckland on 30 June 2010 to six months imprisonment and disqualified from holding or obtaining a motor driver’s licence for one year.[1]
[4] On appeal to the High Court the sentence was reduced to four months imprisonment.[2]
[5] An application to the High Court for leave to appeal that judgment to this Court was declined.[3]
[6] On an application for special leave, a question of law must be identified which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.[4]
[7] None of the questions of law sought to be advanced by counsel for the applicant, as summarised by Brewer J in the leave decision in the High Court,[5] have any merit.
[8] However, in the course of the leave hearing we have considered the conclusions of Andrews J (as part of the High Court appeal) on the topic of home detention. The Judge stated:[6]

I do not accept Mr Orlov’s submission that the Judge failed to consider home detention. That the Judge did consider home detention is evident from [10] and [11] of the Judge’s sentencing notes. Whether the Judge imposed a sentence of home detention rather than imprisonment was a question for the exercise of the Judge’s discretion. I am not satisfied that in the exercise of that discretion the Judge failed to take into account relevant matters, took into account irrelevant matters, or was wrong in principle. The Judge was entitled to conclude that no sentence short of imprisonment would achieve the relevant purposes of sentencing.

[9] This passage was canvassed with Mr Downs, counsel for the respondent, who fairly acknowledged that the above passage arguably contained an error of law insofar as it asserted that the imposition of a sentence of home detention rather than imprisonment raised “a question for the exercise of the Judge’s discretion” and the Court could not intervene unless an error of law on administrative grounds was established.
[10] A question of law arising from this conclusion is as follows:

Whether at [55] of the judgment on appeal (Manikpersadh v New Zealand Police HC Auckland CRI-2010-404-252, 28 September 2010) the High Court Judge correctly identified and applied the test on which an appellate Court will intervene in a sentencing judge’s decision to impose a sentence of imprisonment as opposed to home detention.[7]

[11] We are of the opinion that this is a question of law which is of general and public importance and ought to be submitted to the Court of Appeal. Not to do so would risk a possible injustice in the circumstances of this case. We grant special leave to the applicant to argue this question, and that alone, on appeal.
[12] We note that this Court has previously indicated that a second appeal in a sentencing matter will be “rare”.[8] We are satisfied that this is one of those rare cases, particularly where there is a prospect that the judge on the first level appeal arguably erred in law.
[13] We express our surprise and concern that, despite advice given to Andrews J in relation to reparation, none has been paid. We record the assurances given by Mr Orlov and Mr Malaviya to this Court that:

• $5,000 for payment of reparation is held in the trust account of their instructing solicitors; and
• their instructing solicitors hold an irrevocable authority that payment will be made on demand to the victims of the offending or as they may direct, forthwith upon the Crown confirming the amount of the reparation payable to each victim.

[14] The applicant is on bail granted under an order of Venning J in the High Court on 22 October 2010 which extended the applicant’s bail until further order of the High Court or this Court. The position remains unchanged.

Solicitors:
Botany Law, Auckland for Applicant
Crown Law Office, Wellington for Respondent

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[1] New Zealand Police v Manikpersadh DC Auckland CRI-2010-004-6225, 30 June 2010.

[2] Manikpersadh v New Zealand Police HC Auckland CRI-2010-404-252, 28 September 2010.

[3] Manikpersadh v New Zealand Police HC Auckland CRI-2010-404-252, 8 October 2010.

[4] R v Slater [1997] 1 NZLR 211 (CA); Clifford v Commissioner of Inland Revenue (No 2) [1963] NZLR 897 (CA); Autocrat Sanyo Ltd v Collector of Customs [1985] 2 NZLR 707 (HC and CA).

[5] These questions, including misguided reliance on s 9 of the New Zealand Bill of Rights Act 1990 and art 14.4 of the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), caused attention not to be focused upon the critical issue on the appeal.
[6] At [55].
[7] Compare the issue that arose in R v Conway [2005] NZRMA 274 (CA) at [73].
[8] R v Goodwin CA426/93, 13 October 1993 at 5.