IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-90 [2015] NZHC 1132

BETWEEN	DINESH KUMAR
Appellant	

AND	
POLICE Respondent	

Hearing:	25 May 2015	

Appearances:	
M Utting for Appellant
R See for Respondent	

Judgment:	
25 May 2015	

JUDGMENT OF WHATA J

Solicitors:
Utting Law, Auckland
Meredith Connell, Crown Solicitors, Auckland

KUMAR v POLICE [2015] NZHC 1132 [25 May 2015]

[1]       Mr Kumar pleaded guilty on one charge of operating a vehicle on a road causing injury.  He was convicted and disqualified from driving for six months.

[2]       Mr  Kumar  appeals  to  this  Court  effectively seeking  a  discharge  without conviction but he does not seek to have the disqualification set aside.   Rather, his objective is to be able to apply for a limited licence inside the 28 day stand-down period.

[3]       The police oppose the appeal contending in short that the conviction was not out of all proportion to the circumstances of the offending, especially given the serious injury caused to a victim.

Background

[4]       The summary of facts are that on 31 August 2014, Mr Kumar was parked outside 234 Mt Smart Road, Onehunga in his company truck.  The victim was riding his bicycle east along Mt Smart Road.  Mr Kumar checked his side mirror to see if it was safe to open his door to get out of the truck to pick up a cone belonging to his company.  Mr Kumar saw a van approaching his vehicle from behind.  The victim was behind the van, travelling approximately 30 kilometres per hour.  When the van went past the appellant’s truck he opened the driver’s door.  The door hit the victim and  his  bicycle  causing  him  to  fall  off  his  bicycle  onto  the  road.    The  victim sustained a broken right ankle and laceration to his left thigh.

[5]       Mr Kumar stated at the time that he did not see the bicycle behind the van.

[6]       Mr Kumar’s personal circumstances are that he has not previously appeared

before the Court.    I also  understand  that  he has  paid  reparation  in  the sum  of

$407.99.

Sentencing notes

[7]       Judge Paul was not prepared to discharge Mr Kumar.  His reasons were:

[6]	As I indicated to counsel my sense is, from the letter supplied, that he is a valuable commodity to his company and it is likely they would be

able to accommodate him at least for the first month stand-down period until he is eligible to apply for a work licence following that stand-down period.

[7]        I am not  satisfied  given  the  moderate to low seriousness  of  the offending;  there was injury to a victim, that the consequences as identified are out of all proportion. I decline the application for a discharge.

Jurisdiction

[8]	Section 229 of the Criminal Procedure Act 2011 (CPA) provides a general right of appeal. The relevant threshold test is specified at s 232(2)(b) as follows:

232      First appeal court to determine appeal

(2)	The first appeal court must allow a first appeal under this subpart if satisfied that,—

…

(b)        in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

…

Power to discharge

[9]	Relevantly also, the power to discharge an offender without conviction is stated at s 106(1) and (3)(c) of the Sentencing Act 2002:

(1)        If a person who is charged with an offence is found guilty or pleads guilty,  the  court  may  discharge  the  offender  without  conviction, unless  by  any  enactment  applicable  to  the  offence  the  court  is required to impose a minimum sentence.

(3)        A court discharging an offender under this section may—

…

(c)        make  any  order  that  the  court  is  required  to  make  on conviction.

[10]	The threshold test for discharge without conviction requires assessment of three key factors: 1

1	Refer Sentencing Act 2002, s 107.

(a)       The gravity of the offence;

(b)       The direct and indirect consequences of a conviction;  and

(c)	Whether those consequences are out of all proportion to the gravity of the offence.

[11]     In the result I must be satisfied as to these matters.  If I am I consider that there will have been a miscarriage of justice, I turn then to examine each of those factors.

Gravity

[12]     The gravity in this case is as the Judge observed, at the low to moderate end of the spectrum. While Mr Kumar was careless and his actions caused injury, the summary of facts reveals that he checked that the road was clear, but was mistaken it seems because the victim was obscured by the van.

[13]     There are no aggravating personal features.  There are by contrast, mitigating features, including demonstrable remorse, as evidenced by Mr Kumar’s reparation payment, and his expression of a desire to undertake restorative justice if the victim agreed.   He has also completed an advanced driving course.   Further, he pleaded guilty once he had the opportunity to review fully all disclosure with his counsel.

Consequences

[14]     I am not concerned that Mr Kumar will lose his job.   A letter from his employer indicates that he is a highly valued employee.  I am concerned though that disqualification will significantly affect Mr Kumar’s employer and his co-workers. The relevant effect is captured by the following comment made by his employer in a letter to the Court:

The company heavily depends on his skills and he is the most experienced L2 practicing STMS in TIL. Therefore, the company cannot afford to lose Dinesh and his driving license.  As Dinesh is a valuable staff, the project engineers, working crew and directors depend on him.  If Dinesh does not set up traffic management, the crew will not be able to carry out any works.

[15]     This evidence is not challenged by the police.

Out of proportion

[16]     Ms See argued that these effects are not out of proportion with the gravity of the offending, but it seems to me the only issue is whether Mr Kumar should be able to apply for his licence 28 days earlier than would otherwise be the case.  If  he can, his co-workers will be able to work in that period.  If he cannot, they will arguably at least not be able to work through that period.

[17]     In my view these consequences are plainly disproportionate to the offending bearing in mind that the disqualification must still be served except to the extent that Mr Kumar is able to obtain a licence to enable him to work.2

Result

[18]     The conviction is disproportionate to the offending in this case.  I therefore set aside the conviction but Mr Kumar remains subject to the sentence of disqualification for six months.

[19]     My judgment will lie in Court for two working days to enable Mr Kumar to make arrangements for the purposes of his employment.

2	Police v Stewart (2004) 22 CRNZ 35 (HC).