Kumar v Police [2012] NZHC 946 (8 May 2012)

Last Updated: 22 June 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000103 [2012] NZHC 946

BETWEEN AJNESH SUNNI KUMAR Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 7 May 2012

Appearances: S Thode for Appellant

K Francis for Respondent

Judgment: 8 May 2012

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 8 May 2012 at 12 noon, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

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

Solicitors: S Thode, PO Box 74-199, Greenlane, Auckland [e-mail]

Crown Solicitor, Auckland [e-mail]

KUMAR V NEW ZEALAND POLICE HC AK CRI-2012-404-000103 [8 May 2012]

Introduction

[1] The appellant pleaded guilty to one charge of theft under s 219 of the Crimes Act 1961. On 16 March 2012 Judge Clapham rejected the appellant’s application for a discharge without conviction, convicted and fined him $500 and ordered him to pay Court costs of $132.89.

Preliminary matter

[2] The appellant needs leave to bring this appeal against conviction out of time. The appeal was initially lodged as an appeal against sentence. Mrs Thode accepts it should have been an appeal against conviction. The appeal against conviction is out of time. Mr Francis does not oppose leave being granted. Leave is granted to bring the appeal out of time.

Background facts

[3] Mr Kumar was a courier driver employed by PBT Couriers. His duties included visiting various businesses in the Auckland area where he uplifted items for delivery, scanned them as received by him and then delivered them to the depot. On

19 August 2008 Mr Motorcycles, a retail shop in Pukekohe, Auckland, ordered motorcross equipment from Sports Promotion Limited. The order comprised two sets of motorcycle boots. The two pairs of boots had a wholesale value of $437.18. On or about 19 August 2008 Mr Kumar collected the two pairs of motorcross boots from Sports Promotion Limited in the course of his work as a courier driver. He did not scan the property onto his personal computer to log the fact that he had picked the items up. Some days later he took the items from the van and stored them at his home. On 28 August 2008 the police executed a search warrant at his home and located the items. No reparation was sought as the property was recovered in total.

[4] The appellant was initially charged under s 220 of the Crimes Act. When the charge was amended to a count under s 219 he pleaded guilty.

District Court decision

[5] In declining the application for discharge without conviction the Judge directed himself to the relevant authorities of R v Hughes[1] and Blythe v R.[2] He took the view the offending was grave, noting the breach of trust involved. When considering whether the consequences of the conviction would be out of proportion to the gravity of the offence the Judge noted that the real estate industry involved trust in that sales persons were permitted into homes and concluded:

[9] If one was to look at it from an employment basis to consider whether one chooses (a) or (b), (a) without any recorded breaches of trust and (b) with a recorded breach of trust, clearly all else being equal one would choose (a). Why should an unknown member of the public, who has no prior convictions, be placed in the same position as this defendant, if in fact they made a job application or an application to the Real Estate Institute? That highlights the view expressed, in my view, by Wild J in R v Martin at paragraph 4.5 in respect of future employment prospects:

Clearly employers should be placed in the best position they can be as to past conduct by prospective employees.

[6] The Judge concluded that the conviction would not be out of proportion to the gravity of the offending.

The appeal

[7] The application for discharge without conviction was advanced primarily on the basis that, after ceasing work as a courier the applicant had started to fulfil his long held desire to train as a real estate agent and would be prevented from obtaining a licence as a real estate agent or sales person for a period of 10 years if a conviction was entered. It is submitted that is out of proportion to the gravity of the offence in this case.

Decision

[8] I accept Mrs Thode’s submission that it appears the Judge may have

_{overlooked the fact the result of a conviction was to prevent the appellant from}

working as a real estate agent for 10 years. The Judge seemed to consider the conviction would leave the matter of employment at the discretion of an employer. But s 37 of the Real Estate Agents Act 2008 prevents any person convicted of a crime involving dishonesty from being eligible to apply for a licence for 10 years.

[9] On the basis that the Judge was in error I approach the matter afresh. The first issue is the gravity of the offending. As Mr Francis emphasised the offending does involve a breach of trust. The motorcycle boots were put in the custody of the appellant. He retained them rather than delivering them to their consignee.

[10] The appellant swore an affidavit in support of his application for a discharge without conviction. In the affidavit the appellant expanded on the summary which simply stated the appellant took the items home for his own use. The appellant said:

14. I realised on the same day that the boots were loaded to my van that they were there. I knew that the parcel wasn’t for PBT because it didn’t have the PBT stickers or barcodes.

15. I remember putting it on one of the top compartments in the van, just

so it wouldn’t get in the way, and then I forgot I had it.

16. About a month after, I realised that I still had it because I found it when I was cleaning the van. I then put it inside the house and that’s where the police located the parcel.

17. It was still in the same packaging - I think the outside packaging was damaged but the boots themselves wasn’t opened, used and/or damaged.

18. I don’t know why I didn’t take it back to Sports Pro – I forgot that I had it and by the time I realised, the packaging was damaged and I was too embarrassed to take it back in that state.

[11] The “embarrassment” probably was, as Mr Francis noted, an acknowledgement that he had done something wrong and the appellant deliberately retained the boots at that stage. That supports the guilty plea. The guilty plea was undoubtedly correctly entered. A theft was committed. However, I take into account the circumstances of the theft. I note the boots must have been undamaged as the appellant said, because reparation was not sought. The goods were recovered intact. Further, I note that the offence charged is the least serious form of theft under the

Crimes Act, with the maximum punishment being three months’ imprisonment:

s 223(d) Crimes Act 1961.

[12] Against that, the consequences of the conviction must be balanced. As noted, there will be an absolute bar on the appellant applying for a real estate agent’s licence for a period of 10 years from the date of conviction. That is a significant period of time. Although the appellant was not employed as a real estate agent at the time of the offending, in his affidavit he explains that he had always had the desire to complete his real estate sales person’s certificate and whilst on ACC for two torn discs in his back he completed the certificate. He will now have to pay for and sit further papers before he could be qualified but at the time he had interviews with three real estate agents and was offered jobs with all three. He was unable to accept the positions because of the pending criminal charge. The appellant explains that he has wanted to work in real estate for some time. He has a family connection with real estate because his uncle formerly worked as a real estate agent in Birkenhead.

[13] Mr Francis made the point that Parliament had expressly banned those with dishonesty convictions from applying for or holding a real estate agent licence and had not considered it appropriate to make any exceptions. That is a statutory recognition of the trust and confidence the public must place in real estate agents in handling both their property and money. He suggested that if the presence of such a ban were to itself be used to justify discharges without conviction the legislative policy would be seriously undermined.

[14] However, as Mr Francis properly acknowledged, the Court maintains an overall discretion. The issue in each case is whether the consequences of the conviction outweighs the gravity of the offending. The consequences are clear. The focus in this case is on the other factor in the balance, the gravity of the offending. In the present case the gravity of the offending taking into account the charge and the circumstances of the offending itself does not, in my judgment, support the consequences of the conviction to this appellant.

[15] I am satisfied that the direct consequences of a conviction would be out of all proportion to the gravity of the offending in this particular case.

[16] I then turn to consider the general discretion left with the Court under s 106 as discussed in R v Hughes. At the age of 32 I note the appellant has no previous relevant convictions. He wishes to obtain employment as a real estate agent to provide for his family. The aggravating features of the offending are noted in the nature of the offence itself. While accepting the seriousness of theft, the charge is the least serious of theft charges. The goods were not damaged and were returned to their owners.

Result

[17] In the circumstances the appeal is allowed. The conviction is set aside. The appellant is discharged without conviction. He is, however, ordered to pay the fine

_{of $500 together with the Court costs ordered in the District Court.}

Venning J

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[1] _{R v Hughes [2009] 3 NZLR 222 (CA).}
[2] Blythe v R [2011] 2 NZLR 620 (CA).