Kumar v Police [2012] NZHC 1166 (29 May 2012)

Last Updated: 16 July 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-106/105 [2012] NZHC 1166

KAVIT KRISHNEEL KUMAR

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 28 May 2012

Appearances: M Edgar for the appellant

J Wall for the respondent

Judgment: 29 May 2012

_{JUDGMENT OF CLIFFORD J}

[1] On 29 February 2012 Mr Kumar, having pleaded guilty, was sentenced by

Judge Moses in the District Court at Manukau to 21 months’ imprisonment on some

13 charges. Those charges were:

(a) Driving whilst disqualified (x 2) pursuant to ss 32(1)(A) and 32(4) Land Transport Act 1998;

(b) Providing false details (x 2) pursuant to s 111 Crimes Act 1961;

(c) Driving with excess breath alcohol (x 3) pursuant to s 56(1) Land

_{Transport Act 1998;}

KUMAR v POLICE HC AK CRI-2012-404-106/105 [29 May 2012]

(d) Intentional damage pursuant to s 11(1)(a) Summary Offences Act

1981;

(e) Common assault pursuant to s 9 Summary Offences Act 1981; (f) Failure to answer bail (x 2) pursuant to s 37(a) Bail Act 2000; (g) Male assaults female pursuant to s 194(B) Crimes Act 1961;

(h) Cannabis possession pursuant to s 7(1)(a) and (2) Misuse of Drugs

Act 1975.

[2] In arriving at the sentence of 21 months’ imprisonment, the Judge identified a starting point sentence, on the basis of the totality of Mr Kumar’s offending, of two years’ imprisonment. He uplifted that by four months with regard to Mr Kumar’s previous criminal record. On the basis of Mr Kumar’s youth and guilty plea the Judge allowed a 25 per cent discount. The Judge then considered the question of home detention. He said:

In your case Mr Kumar, I do not consider that it is appropriate because of the number of the offences, the variety of the offences, the period of the offending which stretched out from December 2010 until January this year, the fact that much of the offending was whilst you were on bail for other offences, and because of your previous response to community-based sentences and Court orders. I am of the view that a sentence less than imprisonment would fail to meet the sentencing principles that I must take into account. So that I am of the view that an end sentence of 21 months’ imprisonment is appropriate.

[3] The Judge then noted that “there will be standard release conditions for six months”.

[4] Mr Kumar now appeals against sentence. In his notice of appeal Mr Kumar said that his sentence was harsh, which I take to be an assertion that it was manifestly excessive. He also alleged that the District Court Judge was mistaken because at the time of his sentence the District Court Judge had believed that Mr Kumar would be granted parole after one third of his sentence.

[5] In his written submissions for Mr Kumar, Mr Edgar accepted that the sentence in itself was not excessive and that the sentencing Judge gave valid reasons as to why a sentence of home detention was not to be contemplated. At the hearing of this appeal, Mr Edgar confirmed that that was his view, and that he had informed Mr Kumar of that. Mr Kumar nevertheless wished to pursue this appeal on the ground that his sentence was manifestly excessive.

[6] The Judge recorded the details of Mr Kumar’s offending in his sentencing

notes in the following terms:1

On 4 December 2010 you drove whilst disqualified, that being your third or subsequent conviction for that type of offence, you then provided false information and you are facing a charge of making a false declaration. That charge carries with it a maximum sentence of three years’ imprisonment. On

5 December 2010 you drove your vehicle with a level of 630 micrograms of alcohol per litre of breath. Then a few days later on 9 December 2010 you again drove whilst disqualified, then when you had been drinking you got upset because you could not open the door to your vehicle, kicked a glass door in a house causing damage, gained entry and confronted a victim, held that person up against the wall with your left forearm, and you subsequently let him go. You were driving also on that occasion with a level of 736 micrograms of alcohol per litre of breath. You were granted bail on those matters. And on 15 March 2011 you failed to appear in Court, having been bailed to appear in this Court. On 13 November last year you assaulted a female, circumstances of which has been referred to by your counsel, namely that you had forced down the head of the victim, holding her hair and pushing it down into the foot well of the car, and where there was a struggle for some period of time. You were also found in possession of can. Once again you were granted bail. And whilst awaiting sentence on all those matters, again in January of this year you were stopped, again you gave false information to the police, again you were driving with an excess breath alcohol level this time of 492 micrograms of alcohol per litre of breath, and then on 16 January you breached your bail by failing to appear in Court.

[7] Having regard to those facts, and to Mr Kumar’s previous convictions, I am quite satisfied that – as Mr Edgar himself accepted – the sentence imposed was not manifestly excessive and the decision to decline home detention cannot be challenged.

[8] As to the alleged misunderstanding by the Judge, I find there is no basis for

Mr Kumar’s assertion. In his written sentencing notes, Mr Edgar had attempted to support that submission by reference to the fact that the Judge imposed standard

1 Police v Kumar DC Manukau CRI-2010-092-019886, 29 February 2012 at [2].

release conditions for six months. But, as Mr Edgar acknowledged before me, s 93(2) of the Sentencing Act 2002 is clear. It provides that if, as here, a Court sentences an offender to a term of imprisonment of more than 12 months but not more than 24 months then the standard conditions apply until the sentence expiry date unless the Court specifies otherwise. Mr Kumar’s sentence expiry date is the last day of determinate sentence of 21 months. Therefore, unless Judge Moses had made the order he did, Mr Kumar would have been subject to standard release conditions until that date. On the basis of the Judge’s order, Mr Kumar will only be subject to those conditions for the shorter period stipulated by the Judge.

[9] There is no error in the Judge’s approach. Rather, it is completely in accordance with the relevant statutory provisions. Moreover, there is no indication whatsoever in my view that the Judge proceeded on the basis that the order he made as regards the standard release conditions reflected a misunderstanding that Mr Kumar would be released from prison at the expiry of one third of his term. This appeal is therefore dismissed.

“Clifford J”

Solicitors:

M A Edgar, Barrister, Auckland for the applicant ([e-mail]). Meredith Connell, Auckland for the respondent ([e-mail]).