Kumar v R [2014] NZHC 146 (13 February 2014)

High Court of New Zealand

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Kumar v R [2014] NZHC 146 (13 February 2014)

Last Updated: 4 March 2014

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2013-441-37 [2014] NZHC 146

BETWEEN SURJIT KUMAR Appellant

AND THE QUEEN Respondent

Hearing: 5 February 2014

Counsel: E J Forster for Appellant

R Guthrie for Respondent

Judgment: 13 February 2014

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)

[1] Mr Kumar pleaded guilty in the District Court to four charges of indecently assaulting a 15 year old girl. The sentence he received was 18 months’ imprisonment. The District Court denied leave to apply for subsequent substitution of home detention.

[2] Mr Kumar appealed that sentence on several grounds. However at the hearing Mr Forster sensibly marshalled his client’s challenge behind a single ground: that the Judge erred in refusing leave to apply subsequently for home detention.

Background

[3] It is unnecessary to cause the victim further distress by detailing the physical invasion of her privacy by Mr Kumar. I will simply repeat what the Judge said in his sentencing notes:

There were two pairs of offences, first in October last year, having consumed a good deal of liquor at a ... gathering, the defendant first of all touched this

KUMAR v R [2014] NZHC 146 [13 February 2014]

young complainant around her buttocks and breasts and invited her to have sex with him. The next morning he attempted to pull her into his bedroom and in the context both of those events are admitted to have had indecent connotations. The second series of events occurred in April. Similarly, after consuming liquor, the defendant went into the victim’s bedroom, began to kiss her around the neck area and then lifted her t-shirt up to expose her breasts and touched her vaginal area over the top of her clothing.

Sentence appealed

[4] Mr Kumar pleaded guilty to four charges of indecent assault on a girl of 15 years of age. He was sentenced by Judge Adeane in the District Court on

12 November 2013. The appellant’s behaviour was found to be “middle order offending ... at worst”. However, the Judge noted that the impact on the victim, her family, the repetitive nature of the offending, and the degree of pre-meditation involved.

[5] The Judge held an appropriate starting point for imprisonment was two years. A 25 per cent discount for his guilty plea was given. He was sentenced to a total of

18 months in prison, with release conditions to endure for six months.

[6] Home detention was not appropriate. In part because of the occupants of the proposed address. But the Judge also declined to grant the appellant leave under s

80I of the Sentencing Act 2002 to apply for home detention at a later date if a suitable address was found.

Appeal

[7] Mr Forster submits that the Court erred in not reserving leave to apply for substitution of imprisonment with home detention. He accepted that the Judge was correct to refuse home detention at the time of sentencing: the address proposed was not suitable. But, he says, the opportunity to seek home detention altogether should not have been denied.

[8] Mr Forster submitted that such a sentence offered greater prospects of rehabilitation and that had not adequately been analysed by the Judge. Mr Kumar had only two prior convictions (one for domestic violence, and the other a drink driving offence). He had never before been imprisoned. The need for denunciation

and accountability was something to be balanced against factors pertaining to the appellant. In this case the references tendered to the Court showed he was essentially a good man, but prone to lose his moral compass when abusing alcohol.

Crown submissions

[9] Ms Guthrie (for the Crown) submits that the Judge made no identifiable error. The relevant factors were considered. Denunciation and accountability required a prison sentence in this particular case. She referred to two cases, Hunt v R¹ and R v

M,² where home detention was refused because of the gravity of offending, the

impact on the victim, and effects on family.

Analysis

[10] The decision to impose home detention where a prison sentence is also appropriate is a discretionary judicial exercise. In Manikpersadh v R, the Court of Appeal noted:³

[11] This Court identified the appropriate approach in James v R in this way:⁴

[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

(Footnotes omitted).

[12] We agree with counsel for the respondent’s assessment that the proper approach of an appellate Court in such cases as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other

¹ _{Hunt v R [2012] NZCA 469.}

² _{R v M (CA 387/2009) [2009] NZCA 456.}

³ _{Manikpersadh v R [2011] NZCA 452.}

⁴ James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 (CA).

sentencing appeals to this Court, on the identification of error, if any, in the

court below”.

[11] The Court of Appeal has also held that in borderline cases, where it is difficult to come down firmly in favour of either home detention or imprisonment, “the view of a sentencing judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight”.⁵ This is because the sentencing Judge is in a better position to make an accurate judgment given the likelihood that the Judge has seen a broad range of similar offending.

[12] The Court of Appeal returned to this theme in R v Fairbrother:⁶

[29] Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention.⁷

The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.⁸

[30] That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[31] Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other.⁹ Even in those cases, however, the choice must be intelligible. The factors that really count must be identified and weighed.

[13] As noted before, there is no challenge to denial of home detention on the basis proposed. The address was not suitable. Rather, the challenge is to the refusal to grant leave to reapply.

[14] Section 80I provides that if “at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had

_{been available”, then the court must grant the offender leave to apply for}

⁵ _{R v D (CA 253/2008) [2008] NZCA 254 at [66].}

⁶ _{Fairbrother v R [2013] NZCA 340.}

⁷ _{R v Ondra [2009] NZCA 489; Osman v R [2010] NZCA 199; Heta v R [2012] NZCA 267.}

⁸ _{Manikpersadh v R [2011] NZCA 452.}

⁹ R v D (CA253/2008) [2008] NZCA 254 at [66].

commutation of the sentence of imprisonment to home detention at a later date. Here the Judge said “the needs of denunciation and accountability” rendered home detention inappropriate per se. On that basis the premise for s 80I’s application did not exist.

[15] Because we are concerned with a discretionary decision, Mr Kumar must persuade the Court that the Judge erred fundamentally in deciding that even if a suitable address had been available, home detention would not adequately address the sentencing purposes of denunciation and deterrence.

[16] I am not convinced the Judge erred.

[17] The offending in this case was very serious in context, involving a serious breach of trust in relation to a vulnerable young person who, in the circumstances, was unlikely to have raised any protest. Only the visibility of Mr Kumar’s actions in relation to her caused the offending to become known.

[18] It was also repeated offending. Essentially there were two distinct drawn out incidents two months apart. The second incident was the more serious of the two.

[19] Most importantly there is here such absence of demonstrable, let alone verifiable, remorse as to make home detention an unlikely outcome. Home detention is generally suitable only for those whose remorse is patent, such that three things can be said. First, that they deserve a less restrictive sentence.¹⁰ Secondly, that it is, therefore, unnecessary to imprison in order to denounce and deter a recalcitrant. Thirdly, that they may confidently be expected to convert that less restrictive sentence into a meaningful rehabilitative response. Demonstrable and verifiable remorse is a tangible indicator of likely rehabilitation through a community-based

sentence. It is also a basis for the community to have confidence that its trust will not be abused by re-offending. Logic and experience demonstrate that the remorseful are far more likely to correct a diversion into criminal conduct than those

_{who are not.}

¹⁰ See Sentencing Act 2002, s 10A, as to the statutory sentencing hierarchy.

[20] In this case Mr Kumar tendered a number of positive references from friends, employers and community members. They attest to a good, almost saintly, character. Universally they fail to address what Mr Forster called ‘the other Mr Kumar” – i.e. the one who abuses alcohol. That makes the references altogether unhelpful. They are mere unqualified encomia. Significantly, they fail also to assist the Court on Mr Kumar’s prospects of rehabilitation.

[21] The pre-sentence report is deeply unpromising on rehabilitation. The report records that Mr Kumar, despite his pleas of guilty, denied that anything had happened when interviewed by the probation officer. I quote:

He demonstrated little remorse towards the victim, indicated that nothing had in fact happened and the victim is “just after the money”. Mr Kumar displayed little insight into how his behaviour has impacted on the victim.

The report also records that Mr Kumar has attended alcohol counselling, but at the behest of his wife rather than something he is particularly motivated to do. The short result of that interview was that the probation officer considered his ability to comply with community based sentences was “low to medium”.

[22] In these circumstances I am left unpersuaded that the Judge erred in his discretion to decline home detention per se.

Result

[23] Appeal dismissed.

Stephen Kós J

Solicitors:

Crown Solicitor, Napier for Respondent