Krishnan v Police
[2021] NZHC 2061
•10 August 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-000244
[2021] NZHC 2061
BETWEEN YUVARAJ KRISHNAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 10 August 2021 Counsel
A Takalai for Appellant
P Clifford for Respondent
Judgment:
10 August 2021
JUDGMENT OF WHATA J
This judgment was delivered by me on 10 August 2021 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Meredith Connell, Auckland
KRISHNAN v POLICE [2021] NZHC 2061 [10 August 2021]
[1] Mr Krishnan pleaded guilty1 to one charge of operating a vehicle carelessly2 and one charge of failing to stop or ascertain injury.3 He applied to be discharged without conviction in the Manukau District Court. Judge Dawson declined the application, and instead convicted and discharged Mr Krishnan and ordered him to pay $3,500.00 in reparation. Mr Krishnan now appeals against that decision.
Background
[2] Mr Krishnan pleaded guilty to the following summary of facts. On the 21 October 2020, Mr Krishnan was driving westbound on the North Western motorway. As he was exiting the motorway at the St Lukes off-ramp, he was travelling in the left of two right-turning lanes that lead onto St Lukes Road. The complainant’s vehicle was ahead of Mr Krishnan’s, travelling at approximately 10 kilometres per hour on the approach to the intersection. As Mr Krishnan approached the complainant’s vehicle, he attempted to manoeuvre into the right lane, however, the left front corner of his vehicle struck the right rear corner of the complainant’s vehicle, pushing it forward and causing moderate damage to the vehicle. Mr Krishnan continued to drive but had to stop behind a vehicle that was stationary. The complainant yelled out to Mr Krishnan to stop but he ignored that request and continued to drive home. The complainant did not sustain any injuries in the crash.
District Court sentence
[3] Judge Dawson’s reasons for declining Mr Krishnan’s application were succinct. The Judge said:4
[4] I note you are 29 years of age, you have no previous convictions whatsoever. You have indicated through your counsel you wish to apply for a discharge without conviction. The offending is of relatively low gravity, given that no one was injured and you are able to pay reparation. You are about to study for your final exams to become a medical doctor and are concerned of the impact a conviction might have on your career.
1 Mr Krishnan entered pleas on 22 April 2021.
2 Land Transport Act 1998, s 37(1). Maximum penalty fine of $3,000.00, and the court may order the person to be disqualified from holding or obtaining a driver licence for a period the court thinks fit.
3 Land Transport Act 1998, s 35(1)(c). Maximum penalty three months’ imprisonment, a fine of
$4,500.00 and the court must order the person to be disqualified from holding or obtaining a driver licence for six months or more.
4 Police v Krishnan [2021] NZDC 7416 [District Court decision].
[5] I am not convinced that the consequences would be particularly onerous quite frankly. But given the lower level of gravity of the offending and your ability to pay a relatively high amount of reparation, I am convicting and discharging you on both charges, but I am ordering you to pay $3,500 reparation to the insurance company at the rate of $500 a fortnight, with the first payment due on 29 April 2021.
Grounds of appeal
[4]Mr Krishnan raises two primary grounds of appeal:
(a)first, that he was deprived of an adequate opportunity to present his application for discharge without conviction; and
(b)second, that the Judge was wrong to refuse the application.
Threshold for appeal
[5] An appeal against the refusal of a Court to grant a discharge without conviction is treated as a composite appeal against both conviction and sentence.5 The test for whether to grant a discharge without conviction is an evaluative judgment, not a matter of discretion.6 Therefore, the ordinary principles governing general appeals apply and the appellate court must make its own assessment of an application’s merits.7 Mr Krishnan must show there has been a miscarriage of justice.8 In the context of a discharge without conviction, a miscarriage of justice means a “material error”.9
Discharge without conviction
[6] On an application for discharge without conviction,10 the Judge must consider the requirements of s 107 of the Sentencing Act 2002:
(a)the gravity of the offending;
5 Ovtcharenko v Police [2017] NZCA 65 at [5].
6 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]; and Blythe v R [2011] NZCA 190,
[2011] 2 NZLR 620 at [12]–[13].
7 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.
8 Criminal Procedure Act 2011, s 232(c).
9 Gaunt v Police [2017] NZCA 590 at [9], citing Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].
10 Sentencing Act 2002, s 106.
(b)the direct and indirect consequences of a conviction; and
(c)whether those consequences are out of all proportion to the gravity of the offending.
[7] If those factors are made out, the Judge may then exercise the discretion to grant a discharge without conviction under s 106 of the Sentencing Act.11
Fresh evidence
[8] Ms Talakai, for Mr Krishnan, submits that he was not given the time and opportunity to prepare his application for a discharge without conviction. He believes that he did not get a fair chance to assemble the case in support of his application.12 His application for discharge without conviction was heard at the same time as pleas were entered. In this regard, Mr Krishnan has, since the District Court sentencing decision, filed evidence relating to the consequences of conviction for him. The admissibility of that evidence is not opposed. The respondent accepts that the evidence is credible and could not have been presented to the sentencing Court with reasonable diligence.
[9] I agree that the evidence is admissible. I also think I should consider the application afresh in light of that evidence. I mean no criticism of Judge Dawson’s approach in what would have undoubtedly been a very busy sentencing day. But the fact remains that he did not have the benefit of the evidence now before me and I proceed on the basis that I should examine the merits of the application afresh having regard to evidence that was not available to the Judge.
Discussion
[10] I consider Mr Krishnan should be discharged without conviction. In the present circumstances, conviction is grossly disproportionate to the offending. The offending sits comfortably at the very low end of the spectrum for offending of its
11 R v Hughes, above n 6.
12 His counsel cites criminal procedure protections contained in ss 24 and 25 of the New Zealand Bill of Rights 1990.
kind. It involved a momentary lapse of judgment which lead to a minor motor vehicle accident on a notoriously busy intersection and only moderate damage was caused. Plainly, Mr Krishnan should have stopped, and the police cannot be criticised for laying charges. But, his was not an egregious case of fleeing from the scene. In fact, Mr Krishnan had to stop nearby. Moreover, as he explains in his affidavit, the traffic was congested, and he did not know where to pull over.
[11] Mr Krishan has no prior convictions for offending of this type, he is clearly remorseful, has since completed a defensive driving course and there is no suggestion whatsoever he presents any ongoing risk to the public. He has paid compensation in respect of the damage caused so the victim’s (and the insurer’s) harm has been remedied. The proceedings have also undoubtedly served their deterrent purpose.
[12] In terms of consequences, Mr Krishnan is employed by the Auckland District Health Board in its COVID-19 Response Unit. Naturally, that District Health Board takes any convictions on the record of its employees very seriously. In a letter from James Worthy (Clinic Manager) of it is noted:
If there is a conviction on [Mr Krishnan], we cannot offer him further employment in the Public Health Unit, COVID-19 Unit or the Infectious Unit and we cannot be a reference for him in his future employment as a medical officer. We will have to strongly consider a termination of his contract as part of the individual employment agreement as per the agreement to uphold the integrity of a Health Professional working with the COVID-19 Unit.
[13] A letter from the Medical Council of New Zealand states Mr Krishnan has passed his medical exams and, accordingly, is eligible to apply for full registration to practice in New Zealand. The Medical Council’s policy on registration in New Zealand include fitness registration requirements, as provided in the Health Practitioners Competence Assurance Act 2003. Section 16 of that Act provides matters prohibiting an applicant’s registration, including if:
(c) he or she has been convicted by any court in New Zealand or elsewhere of any offence punishable by imprisonment for a term of 3 months or longer, and he or she does not satisfy the responsible authority that, having regard to all the circumstances, including the time that has elapsed since the conviction, the offence does not reflect adversely on his or her fitness to practise as a health practitioner of that profession; ...
[14] Mr Krishnan is concerned his conviction might affect his eligibility to practice medicine in New Zealand and affect his ability to train in the United States. Mr Krishnan produces a letter from Tomasz Rogula, Professor of Surgery at Case Western Reserve University in Ohio. By reference to the University’s policies on criminal background vetting for its potential employees, Dr Rogula advises Mr Krishnan is a potential candidate for further training in infectious diseases research at the University in 2022, but that “if there is a conviction of any kind, we would have to reject any application.”
[15] Ms Clifford, for the Crown, submits none of the above evidence is an absolute bar on Mr Krishnan’s registration as a doctor, and that the consequences of conviction are not out of all proportion to the offending. Ms Clifford also submits Mr Worthy’s letter is not an unequivocal statement that Mr Krishnan will lose his employment. She notes Mr Krishnan’s offending must, in any event, be brought to the attention of the Medical Council and equivalent bodies in the United States, referring to a statement in the application form for registration as medical doctor in New Zealand requiring broad disclosure of any police investigation or charge, including traffic offences and regardless of whether the proceedings resulted in a discharge without conviction.
[16] Ms Clifford’s points are fairly made, and it is for Mr Krishnan to show there is a real risk of the consequences outlined by him occurring. It is not clear that his future in medicine will certainly be denied him because of the conviction. Nevertheless, on the evidence before me, the black mark of conviction remains significant because there is a real risk of Mr Krishnan losing his present employment or will not be offered further employment, and that future training opportunities overseas will not be available to him. That would be an utterly disproportionate outcome given the minor offending in this case and complete absence of ongoing risk presented by Mr Krishnan to the public. To my mind, this is clearly a case where s 106 of the Sentencing Act is properly engaged and Mr Krishnan should be discharged without conviction.
Result
[17]Leave to adduce further evidence is granted.
[18]The appeal is allowed. Mr Krishnan is discharged without conviction.
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