R v Kumar [2012] NZHC 2290 (6 September 2012)

Last Updated: 14 September 2012

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT/VICTIM PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-092-011460 [2012] NZHC 2290

THE QUEEN

v

PRAVIN FIA HARI PRASAD KUMAR

Charge: Wilfully attempting to pervert the course of justice

Plea: Not guilty

Appearances: A M McClintock and L M Mills for Crown

S Lance for Prisoner

Sentenced: 6 September 2012

Three years’ imprisonment concurrent with existing sentence

_{SENTENCING NOTES OF VENNING J}

Solicitors: Crown Solicitor, Auckland

Copy to: S Lance, Auckland

R V KUMAR HC AK CRI-2011-092-011460 [6 September 2012]

[1] Pravin Kumar, at the age of 43 you are for sentence this morning having been convicted of one count of wilfully attempting to pervert the course of justice. You were found guilty by the Court following trial before Judge alone. You were found not guilty and discharged on one further count of the same offence. The maximum penalty prescribed by Parliament is seven years’ imprisonment.

[2] On 13 October 2009 you were convicted of the following charges against your victim:

kidnapping;

indecent assault (by touching her breasts); and sexual violation by rape.

[3] Those convictions followed a trial that proceeded in your absence because you chose not to attend trial.

[4] On 29 March 2010 you appealed your convictions to the Court of Appeal. The appeal is yet to be heard.

[5] While you were in prison and awaiting the hearing of your appeal you made a number of telephone calls to your victim. As a serving prisoner you were entitled to make calls to authorised numbers. You made calls to those numbers and then by the use of a three way telephone a relative put you through to other numbers you provided or they transferred your call to a calling card. You were able to then use the calling card to dial the number that you wanted by using the keypad on the prison phone.

[6] You went to quite some lengths to find and contact your victim. First, you made a number of calls to obtain the contact number for her key social worker. You then called that social worker and represented to her that you were Dr Pillai, a doctor the Crown had instructed to examine the victim prior to trial to give evidence as to

her mental state of health. The social worker gave you contact details for your victim because she believed you were Dr Pillai. You then rang the residence where the victim was being cared for and was put through to her. In the first call on 8 June you represented you were Dr Singh calling on behalf of Dr Pillai. You discussed her medication with her. You had all those details because of the disclosure and transcript from trial. You obtained her trust and obtained a number of personal details from your victim, including her personal cell phone number, and the address that she had been living at and would be living at when she was discharged from care.

[7] In the first call on 13 June you were again put through to your victim. You again obtained her trust. She thought she was speaking to a doctor. You obtained her mother’s telephone number from her. You then tried to discuss your offending against her in detail. I do not propose to refer to all of the detail of your conversation with her during that call. But you effectively put your case to your victim and argued with her when she would not accept that, in your words, “nothing happened”, you pressed her on that and returned to it on more than one occasion. You tried to put in her mind that it was her support workers and the detective that had effectively told her what you had done to her and what to say. You raised the incident relating to your offending a number of times. You did so with the intention of having her change her evidence either for the purposes of the appeal or any retrial if the appeal was successful.

[8] Apart from the calls to the victim it is apparent from another call to your brother that you intended to maintain a course of conduct in relation to your victim and work systematically towards achieving your end. You also went as far as contacting a friend of your victim to obtain further information about her.

[9] At trial it was submitted on your behalf you were simply making inquiries to try and establish “the truth” by putting certain propositions to the victim. This Court rejected your explanation. Your conduct went much further than that.

[10] This Court was left in no doubt that in the course of the call on 13 June you were wilfully attempting to pervert the course of justice by placing pressure on the

victim to cause her to doubt or change her evidence. The purpose of your calls was directed towards that end to have her change or withdraw her evidence, other than of her own free will.

[11] The pre-sentence report discloses a number of matters of concern to the Court. The report writer notes your emphatic denial of any wrongdoing and observes that any remorse is effectively self-serving. You repeated the explanation to the probation officer, which the Court rejected at your trial, namely your actions were prompted by a desire to seek the truth. You suggest your primary concern was for the victim, who you consider was placed under improper pressure by the authorities to press the charges against you. You still refuse to accept you have done anything wrong. As the probation officer notes, your offending supportive attitudes and sense of entitlement are of concern. You lack insight into your offending and have an impoverished motivation to change. You lack empathy. Your risk of re- offending is high. You fail to acknowledge any wrongdoing or that your actions have revictimised your victim in this matter.

[12] The probation officer’s poor assessment of you reflects the assessment this Court formed after seeing you give evidence. Your sense of self justification and entitlement, your lack of insight into your actions are all matters of real concern. Unless you accept and acknowledge your offending there is little prospect for your rehabilitation and every likelihood you will continue to offend.

[13] In his submissions in relation to sentencing Mr Lance has again submitted your offending was borne from the frustration that you felt in relation to your treatment at the hands of the justice system and your dissatisfaction with the lawyers who had been appointed to represent you at your trial in relation to the sexual offending. I do not accept that explanation provides any justification for your acting in the way you did. The explanation advanced on your behalf simply confirms your continued lack of insight into this offending and your continued sense of entitlement and rights without any regards to the position of the victim.

[14] The Crown submit a sentence of three years is appropriate for your offending. Mr Lance submits that a sentence of approximately 12 months is appropriate.

[15] Mr Kumar in sentencing you I have regard to the purposes and principles of

_{the Sentencing Act. In your case the particularly relevant purposes are:}

to hold you accountable for the harm done to the victim and the community

_{generally by offending of this nature;}

to promote in you a sense of responsibility for and acknowledgement of that

_harm;

to provide for the interests of the victim;

to denounce your conduct; and

_{to deter you and others from committing similar offending.}

[16] The particularly relevant principles are to take into account the gravity of the offending, including the degree of your culpability and the general desirability of consistency with other sentences imposed by the Court.

[17] In relation to that I have considered the cases counsel have referred to the Court: R v Hillman;1 R v Churchward;2 R v Dutt;3 R v S;4 R v Tumata;5 R v Gemmell;6 R v Clutterbuck;7 and R v Barratt.8

[18] Mr Lance makes the point that in the case of R v S a sentence of six months’ imprisonment was imposed for a charge of attempting to pervert the course of justice. S had called one of the victims of his offending whilst he was on remand in custody. The calls were aimed at having the victim change their statement. They

_{were persistent and the requests insistent.}

1 _{R v Hillman [2005] 2 NZLR 681.}

2 _{R v Churchward CA439/05, 2 March 2006.}

3 _{R v Dutt HC Auckland T025524, 2 April 2004.}

4 _{R v S HC Auckland CRI-2009-092-15555, 15 February 2011.}

5 _{R v Tumata [2012] NZHC 805.}

6 _{R v Gemmell CA257/96, 2 October 1996.}

7 _{R v Clutterbuck CA372/99, 17 November 1999.}

8 R v Barratt CA164/01, 27 August 2001.

[19] However in any judgment the sentence of six months in S is not relevant to your case. It must be seen in context. S was sentenced having been found guilty on a considerable number of violent and sexual offences. He was sentenced to an effective sentence of 19 years six months’ imprisonment. The offence of attempting to pervert the course of justice was effectively subsumed in the lead sentences. It is a case which should be restricted to its facts in relation to the sentence for attempting to pervert the course of justice and I put it to one side.

[20] In R v Clutterbuck the appellant had threatened his former partner in order to compel her to withdraw her application for a protection order. The Court observed that the previous decision of the Court of Appeal in R v Hillman established a benchmark of three years’ imprisonment for relatively serious cases and a sentence in the range of 18 months to two years for a case such as that before the Court.

[21] In R v Hillman Mr Hillman had attempted to persuade the complainant to withdraw her complaint of assault made earlier to the police. The Court observed that:9

Any attempt to dissuade a witness from giving evidence strikes at the administration of justice and must be met by the Courts with a stern response.

The Court of Appeal went on to consider three sentencing appeal decisions: R v Ormsby;10 R v Laugalis;11 and R v Monika.12 In R v Hillman the Court noted the three years was taken as a benchmark for what was a very serious offending of its kind. The Court observed that by comparison three years must be held to be excessive in that case and should be reduced to 18 months but in doing so observed:13

... we emphasise that in all cases of this kind a condign and deterrent sentence is required because of the nature of the offending, striking as it does at the proper administration of justice, ...

9 _{R v Hillman at [6].}

10 _{R v Ormsby (CA 80/79, 4 September 1979.}

11 _{R v Laugalis (CA 277 and 278/83, 3 May 1984.}

12 _{R v Monika (CA 139/90, 20 November 1990.}

13 R v Hillman at [7].

[22] While those cases provide assistance to the Court there is, however, no tariff for this type of offending. Each case must be dealt with on its own facts. I regard the offending in the present case as particularly serious offending of its kind. Mr Kumar you had been convicted of serious offending against the victim, including sexual violation by rape. To support your appeal and/or to support your case on any retrial if granted you then sought to influence the victim in the evidence she had given against you with a view to either having her ultimately change that or not give evidence at retrial.

[23] Your actions were well planned and ongoing. You embarked on a deliberate course of action to locate and contact your victim. Your offending effectively further abused the vulnerable victim. You were aware of her vulnerability and her mental health condition. You had obtained all those personal details about her from the disclosure and evidence provided to you as the accused in the trial. You abused the purpose for which that information was provided to you. You pretended to be her doctor and obtained further personal details from her by that deceit. It is apparent from your other communications to your brother and your actions in contacting the victim several times that you intended to pursue your course of action until you achieved your end. You were only stopped by the intervention of the police.

[24] Mr Lance referred to a number of factors which he submitted were mitigating features of the offending. Mr Lance submitted, that you did not directly or expressly threaten the victim. While that is correct, your offending was more subtle than that and was to the same end, namely to affect her evidence. Mr Lance also submitted that there was no face to face or direct contact but again, as I have noted your conduct and contact was persistent and your attempt to influence her and her evidence was insidious.

[25] Mr Lance also submitted that while the victim may have been adversely affected to a degree by the contact, in his words, she had “bounced back”. I note that while the victim herself says she is now over it and can go out and not be frightened her social worker confirmed that after receiving the calls and realising they were from you she experienced a relapse of her mental health condition, became unwell and had to be placed in a respite facility for four weeks. It took months for her to

recover and she started to self harm again. She has clearly been affected by your offending.

[26] Mr Kumar, please stand.

[27] Mr Kumar were it not for the authorities that I have referred to and the factors that Mr Lance addressed on your behalf, I would have taken a starting point of four years as appropriate for your offending in this case. However, having regard to those authorities and the factors Mr Lance has raised I consider the appropriate starting sentence to be three years’ imprisonment. There are no personal aggravating or mitigating factors. While you have a number of previous convictions I accept they are for unrelated offending. I do not propose to apply any uplift for that previous offending. There are no personal mitigating factors. You are clearly not remorseful.

[28] On the charge of wilfully attempting to pervert the course of justice you are

sentenced to three years’ imprisonment. It is to be served concurrently with your existing sentence. Stand down.

Venning J