Kumar v R [2020] NZCA 325 (3 August 2020)

Last Updated: 12 August 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA276/2019 [2020] NZCA 325

	BETWEEN	MANOJ KUMAR Applicant
	AND	THE QUEEN Respondent

Hearing:	25 June 2020
Court:	Brown, Brewer and Hinton JJ
Counsel:	Applicant in person S K Barr for Respondent
Judgment:	3 August 2020 at 11.00 am

JUDGMENT OF THE COURT

The application for leave to extend the time for filing the notice of appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

• [1] Mr Kumar applies for leave to extend the time allowed for the filing of his notice of appeal.
• [2] On 6 November 2017, the day of his trial, Mr Kumar obtained a sentence indication of six months community detention from Judge Patel on the charges he faced. He accepted the indication, pleaded guilty to the charges, and on 10 May 2018 was duly sentenced to six months community detention.^[1] He was also made subject to a reparation order.
• [3] The charges to which Mr Kumar pleaded guilty were one representative charge of obtaining by deception where the value exceeded $1,000^[2] and one charge of theft of camera equipment valued at approximately $95,000.^[3]
• [4] Mr Kumar, who represented himself before us, contends he entered his pleas of guilty on the advice of his counsel. He contends he was not given proper advice, had insufficient time to consider whether to enter pleas and was in shock at the sudden turn of events which led to the giving of the sentence indication.
• [5] Mr Kumar wants to file his notice of appeal so he can argue that his convictions should be quashed and that he should be permitted to go to trial.

The application

• [6] Mr Kumar had 20 working days after the date of his sentence in which to file his notice of appeal.^[4] In fact, he filed it on 17 June 2019, which is almost a year out of time.
• [7] We may extend the period of time for Mr Kumar to file his notice of appeal, but we will only do so if the interests of justice require it.^[5] An appeal against conviction will only be allowed if the Court is satisfied that a miscarriage of justice has occurred for any reason.^[6] That will be our focus in deciding Mr Kumar’s application.
• [8] Mr Kumar filed an affidavit, sworn on 8 October 2019, in which he says his appeal was filed late because “I was still in shock and gone into depression.” He says that with his wife’s encouragement he first tried to file his appeal in the High Court. Later, he found a lawyer who filed the appeal in this Court.
• [9] In our view, the real reason why Mr Kumar now seeks leave to bring his appeal is contained in a document he filed in the Court for us to consider and which we will treat as his submissions. In it, Mr Kumar says he is facing deportation as a result of his convictions and thinks that is unfair. This is corroborated by his trial counsel, Mr Couchman.^[7]
• [10] Regardless, we will examine the events which led to Mr Kumar entering pleas of guilty to see whether there is a real risk that a miscarriage of justice occurred.

Background

• [11] Mr Kumar and two others incorporated a company called 2 Cheap Computers Ltd. They then advertised a position for an Information Technology and Mobile Phone Service Technician.
• [12] This was a scam. Mr Kumar and one of his associates persuaded nine of the people interviewed to pay money to secure the job. Some of the complainants were told the money would help with their visa applications. In total, they received $59,250.
• [13] The resulting nine charges of obtaining by deception were amalgamated into one representative charge as part of the negotiation process which led to Mr Kumar pleading guilty.
• [14] The charge of theft of camera equipment resulted from Mr Kumar hiring the equipment from a specialist hire company. He claimed falsely that he was filming a promotional tourism video for Indian tourists travelling to New Zealand. On 9 November 2015, he sent a brief email to the hirer saying he had lost the camera equipment and expressing the hope it was insured. The equipment was valued at $95,107.37.
• [15] The previous day, on 8 November 2015, Mr Kumar and his associates had left New Zealand, flying to India on one-way tickets, having transferred abroad the money they had dishonestly obtained.
• [16] Mr Kumar returned to New Zealand on 1 April 2016. One of his associates returned on 7 May 2016. Both were subsequently arrested.
• [17] Mr Kumar faced a strong Crown case when he appeared for his trial. There were witnesses who associated Mr Kumar with the scam, including complainants who had identified him. His bank records showed that between 18 October 2015 and 3 November 2015 a total of $146,700 in cash was deposited into Mr Kumar’s bank accounts before being transferred out.
• [18] The Crown case on the charge of theft of the camera equipment was also strong.
• [19] Mr Kumar waived privilege and so we have affidavits from his trial counsel, Mr Couchman and Ms Cheung.
• [20] Mr Couchman deposes he represented both Mr Kumar and the returned associate. They put forward the same defence which was they were duped by the third (absent) associate into obtaining the money from the job seekers. Their instructions were that they did not know about the money and nor did they receive any of it directly from the complainants. Where complainants suggested otherwise, Mr Kumar’s position was they were mistaken or lying.
• [21] Mr Kumar’s defence to the charge of theft of the camera equipment is not addressed in the affidavits of counsel.
• [22] Mr Couchman considered the Crown had a strong case, at least on the deception charges.
• [23] On the morning of the trial, Mr Couchman says he was approached by a senior prosecutor:

22. Then, out of the blue, Mr Williams said “surely we can resolve this case?” to which I replied, “sure, if it involves a sentence of community detention and reparation”. When Mr Williams replied that it could, I realised he was in fact being serious and so I suggested we use an interview room to flesh out the details of a resolution proposal”.

• [24] Mr Couchman deposes that having had the discussion with Mr Williams, Mr Couchman and Ms Cheung spent approximately 30 to 40 minutes discussing the resolution proposal with Mr Kumar and his associate. Mr Couchman advised Mr Kumar that the most significant consideration was the certainty the proposal created:

If Mr Kumar proceeded to trial, there was no guarantee he would be acquitted on all charges. If he was found guilty on all or most of the charges, he could still be sent to prison. We were aware that the Crown was able and ready to proceed as they had witnesses lined up in court.

• [25] Mr Couchman deposes he reminded Mr Kumar of the areas of weakness in the defence.
• [26] After this, Judge Patel gave his sentence indication.
• [27] Mr Couchman and Ms Cheung had a further conference with Mr Kumar and his associate lasting around 10 minutes. They went over what Judge Patel had said.
• [28] Mr Kumar and his associate then went to lunch. They discussed their options. They met again with Mr Couchman and Ms Cheung at 2.00pm and said they wished to accept the sentence indication. Mr Couchman had, over the lunch period, prepared written instructions. Mr Kumar signed them. He then appeared in Court with his associate and pleas of guilty were entered.
• [29] Mr Couchman deposes to a telephone conversation he had with Mr Kumar on 26 February 2019 in which Mr Kumar said he was considering appealing his convictions as a way to avoid deportation.
• [30] Ms Cheung’s affidavit is consistent with Mr Couchman’s.
• [31] In the document which we are treating as his submissions, Mr Kumar tells us that he went into business with his two associates and went in to debt to do so. Mr Kumar felt trapped and when his associates said they were going to hire some people and “ask money for the job” he went along with it. He says:

I took a lot of the interviews with Rohit. Then I came to know that Rohit was asking money from them. But I had no choice but to keep [quiet] as I was also trapped into. I was given a lot of money to put into my bank account by both of them. I used to go to bank with them to deposit it into bank. They promised me that they’ll give my money back in a while.

• [32] Similarly, with regard to the theft of the camera equipment, Mr Kumar says he had to acquire the equipment because: “They said only after they’ll return me my money back.”
• [33] Mr Kumar says that he was paid his money back.

Decision

• [34] We are satisfied there was no error by Mr Kumar’s counsel. The Crown case was strong and the deal offered by Crown counsel was unaccountably attractive. Judge Patel was persuaded by the joint approach of counsel and gave a sentence indication, which was manifestly inadequate. At the sentencing hearing, Judge Patel acknowledged this:^[8]

[12] Let me finish my sentencing by saying that had it not been for such a sympathetic view taken by the Crown in your sentencing that the sentences would have been of a considerably more punitive nature.

• [35] Mr Kumar received the right advice, he was given ample time to consider it and discuss it with his co-defendant. We are satisfied Mr Kumar understood the advice and accepted it to avoid the risk of imprisonment if he were found guilty at trial.
• [36] There is no risk of miscarriage of justice. On what he told us alone, Mr Kumar committed the offences with which he was charged. We do not think Mr Kumar realises that. The overall tenor of his submissions to us, oral and written, is that he feels he is in a desperate situation because of his likely deportation. He justifies his offending by blaming his two associates for putting him in a parlous financial situation, which left him no choice but to go along with their schemes in order to get his money back.
• [37] The application for leave to extend the time for filing the notice of appeal is declined.

Solicitors:
Crown Law, Wellington for Respondent

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^[1] R v Kumar [2018] NZDC 13052.

^[2] Crimes Act 1961, ss 240 and 241(a). The maximum penalty is seven years’ imprisonment.

^[3] Sections 219 and 223(b). The maximum penalty is seven years’ imprisonment.

^[4] Criminal Procedure Act 2011, s 231(b).

^[5] R v Knight [1998] 1 NZLR 583 (CA) at 587.

^[6] Criminal Procedure Act, s 232(2)(c).

^[7] Referred to at [29].

^[8] R v Kumar, above n 1.