Kumar v New Zealand Police
[2024] NZHC 3972
•20 December 2024
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2024-425-000044
[2024] NZHC 3972
BETWEEN SALESH SARWAN KUMAR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing:
Further Submissions:
16 December 2024
17 December 2024
Appearances:
J A T Ross for Appellant
M B Brownlie for Respondent
Judgment:
20 December 2024
JUDGMENT (REDACTED) OF PRESTON J
This judgment was delivered by me on 20 December 2024 at 11.00 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date……………
KUMAR v NEW ZEALAND POLICE [2024] NZHC 3972 [20 December 2024]
Introduction
[1] Salesh Kumar pleaded guilty to one charge of assault on a person in a family relationship—his wife.1
[2] On 19 August 2024, Judge Doyle declined Mr Kumar’s application to be discharged without conviction. The application, if successful, would have been his third such disposition by the Court.2
[3]Mr Kumar appeals.
Family harm offending
[4]The facts are briefly stated.
[5] On 6 February 2024, Mr Kumar was at home with his wife, [redacted], and their two children. [Redacted] asked Mr Kumar why she could not log into their shared Facebook page. A verbal argument ensued. Mr Kumar responded by slapping [redacted] twice with an open hand: once in the face and once on her thigh/hip.
[6] [Redacted] suffered no physical injuries but was visibly upset when spoken to by police.
[7] Mr Kumar admitted the offending. In explanation, he said he did it because [redacted] would not shut up.
Decision under appeal
[8]Police opposed Mr Kumar’s application for a discharge without conviction.
1 Crimes Act 1961, s 194A—maximum penalty two years’ imprisonment.
2 Police v Kumar [2024] NZDC 19740.
Previous relevant dispositions
[9] Judge Doyle summarised relevant background, noting this was Mr Kumar’s third application for a discharge without conviction but that that did not preclude the court from granting the application.
[10] Her Honour surveyed all Mr Kumar’s previous dispositions by the Court, as follows:3
[10] Although you have no convictions you have been before the Court on three occasions. In 2012 you were charged with and pled guilty to careless driving. You were discharged without conviction. I simply acknowledge that and put that to one side because that plays no part in me exercising my discretion today.
[11] In 2015 you were charged with a Summary Offences Act 1981 common assault against your wife where you pled guilty to slapping her once on the face. You received police diversion, and because [you completed] relationship counselling as required by the police the charge was dismissed when you appeared on 10 March 2016.
[12] In 2018 you were charged with threatening behaviour, which carried with it a three months’ maximum sentence, and for failing to appear in respect of which you were convicted and discharged. On the threatening behaviour you pled guilty. You sought a discharge without conviction from the District Court. That was declined. You were fined $100.
[13] In 2020 the franchise that you were involved with, the franchisee licence was cancelled as a result of that conviction and so you appealed to the High Court on the basis that the consequences for you of having the franchisee licence cancelled was out of all proportion to the seriousness of your offending which resulted in that conviction.
[14] In 2021 the High Court agreed with you and determined that the discharge without conviction should be granted. The High Court decision has been provided. I do not intend to go through that other than to summarise by saying at that stage you had done 13 out of 20 hours of a Living Without Violence course in 2019. You had not completed any further sessions after you were convicted because you thought there was no point. The High Court found that all of the potential consequences for you had in fact come to fruition because of the fact that your franchise had been cancelled.
…
3 Police v Kumar, above n 2.
[11] The Judge acknowledged the “very thorough and helpful written submissions” filed by the parties and Mr Kumar’s affidavit evidence. Having regard to that material and the oral argument, the Judge undertook the orthodox three step assessment dictated by ss 106 and 107 of the Sentencing Act 2002.
Gravity of offending
[12]Under the first stage, assessing the gravity of the offending, the Judge noted:4
(a)As the maximum penalty of two years’ imprisonment denotes, Mr Kumar’s offending is more serious than the charges involved in the two relevant previous dispositions for offending against the same victim, his wife.
(b)For the third time within less than 10 years Mr Kumar has revictimized the same person, in this case with further acts of violence against her.
(c)The offending was further aggravated because of the presence of his children in the family home when he committed the assault on their mother.
(d)Additionally, as at the time of the assault, Mr Kumar had completed 13 sessions of a Living Without Violence course5—opportunities provided to learn different ways of dealing with violence but to nil effect.
[13] The Judge assessed the gravity of the offending as at a much higher level than the threatening behaviour in 2018 which resulted in a discharge in the High Court on appeal.
4 Police v Kumar, above n 2, at [15]-[17].
5 The Judge recorded Mr Kumar had completed 21 sessions altogether, which included eight sessions completed following plea on the index offending.
Consequences of conviction
[14] Assessing the consequences of conviction, the Judge identified factors including shame, impact on Mr Kumar’s relationship with his wife, how he is perceived within the community and his business reputation as flowing principally from his offending:6
Those are not necessarily consequences of a conviction per se, but consequences of the fact that you are yet again before the Court on assault charges in relation to your wife.
[15] The essence of the application and of the Judge’s determination turned on the impact of a conviction upon Mr Kumar’s business interests, about which the Judge said:
[20] The real consequence in terms of a conviction is in relation to what a conviction is going to mean for your future involvement with the franchises. You and your wife have a number of business interests. You are predominantly involved in two of those and you are concerned about the fact that there is an obligation under the contracts that you have to provide information about your criminal history. That applies, I am told, even to the businesses where your wife is the director and shareholder, and you are simply an employee, because she is also required to provide Ministry of Justice information about family members and potentially employees.
[21] You are again seeking that you are not convicted on the basis that this is going to affect your ability to continue with the franchises that you are involved in and that your wife is involved in. I am told that will inevitably lead to financial hardship and probably a High Court appeal, and I am comfortable with that being an option for you in the future if you consider that is appropriate, but today I am not satisfied, given the seriousness of your continued offending against this victim, that it would be out of all proportion for a conviction to be entered against your name.
[22] I am concerned that there should not be an automatic pass for you because of the nature of your business interests, where you could never have a conviction entered because the consequences will always be that it impacts your ability to work in these areas. It cannot be that the law is intended that someone can make arrangements in terms of how they run and operate their businesses so that they will always be exempt from conviction because the same argument will always be raised.
…
6 Police v Kumar, above n 2, at [19].
Proportionality assessment
[16] The Judge appreciated there may be “some hardship” to Mr Kumar as a result of a conviction due to disclosure requirements.7 However, weighing the consequences of a conviction, in particular those which were in the Judge’s view truly a consequence of conviction, not simply flowing from the offending itself, the Judge did not consider them out of proportion to the gravity of the continued offending against the victim. She observed that those consequences were “the reality for someone in your position on the fourth time that you appear before the Court the third time that you appear for similar offending against the same victim”.8
[17] Accordingly, the Judge was not satisfied it was appropriate to grant the discharge without conviction.
Principles on appeal
[18] An appeal against refusal to grant a discharge without conviction is a composite appeal against conviction and sentence.9 The appellant bears the onus of satisfying this Court that interference in the District Court’s decision is justified.10 The appeal is by way of rehearing, meaning this Court must make its own assessment of whether the criteria for discharge without conviction is met.11 The Court may grant a discharge without conviction under s 106 of the Sentencing Act only if it is satisfied, under s 107, that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.12
[19] The decision under s 107 involves a matter of fact, requiring judicial assessment. If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge, or a miscarriage of justice will have occurred for any other reason, and so the appeal against conviction must be allowed.13
7 Police v Kumar, above n 2, at [23].
8 At [24].
9 Jackson v R [2016] NZCA 627, (2016) 28 FRNZ 144 at [16].
10 Austin Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].
11 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].
12 Sentencing Act 2002, s 137.
13 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].
Analysis
[20] Mr Ross, on behalf of Mr Kumar, submits the Judge erred in declining the discharge without conviction application by: (1) overstating the gravity of the offending; and (2) understating the consequences of conviction. Mr Ross submits the errors should be corrected and the discharge granted.
Did the Judge err in her assessment of the gravity of the offending?
[21] Mr Ross submits the Judge overstated the gravity of the offending by treating the presence of Mr Kumar and [redacted]’s children as an aggravating factor. Counsel observed that the definition of “victim” in the Sentencing Act would not include the children as a victim of the offence. The children did not witness nor were involved in the assault, and Mr Ross submits the Judge’s suggestion they “experienced” the family harm was speculative.14 In oral submissions counsel described it as a slight if subtle overstep on the Judge’s part.
[22] Mr Brownlie, for the Crown, submits the fact the children were present at the address including immediate police response aggravates the offending irrespective of whether they witnessed it directly or not and the Judge did not err in her observation.
[23] Mr Ross is correct insofar as that the children did not witness Mr Kumar assaulting his wife. However, the Judge did not consider the children’s presence in the home at the time was aggravating on that basis. Rather, the Judge said:15
[8] …I understand that [the children] did not directly witness what occurred but they were in the house and so they would have been aware that the police had been called and that their mum was upset about what happened.
[9] That is important because my starting point is that there is more than one victim of your offending. Children do not witness family harm, they experience it, because they feel what is going on for their parents and they will have lived through not only what happened that night, including the police coming and talking to their mum, but also the upset that she would have felt or a considerable period of time afterwards, and of course the disruption to their normal life as a result of you being bailed away from the house and all
14 At para 16 of his affidavit, Mr Kumar stated the children “were at the address on 6 February 2024 [date of assault] but did not see me slap [redacted]”.
15 Police v Kumar, above n 2.
of the stress and strain that comes with you being once again before the District Court.
[24] As the Judge identified, given the assault occurred within the family home and the police were immediately called and responded, an available and reasonable inference is that the children were negatively impacted. The summary of facts records [redacted] was visibly upset when police arrived. In her victim impact statement, made two and a half weeks after the assault, she stated “[a]fter Salesh slapped me I was scared. I don’t want him to hurt me again.” [Redacted] supported Mr Kumar’s release on bail, but to his mother’s address rather than to the family home. The psychological harm [redacted] experienced evidently continued beyond the date of the assault and during the period when she was the only parent within the home. To suggest the children, then aged nine and 11 years old, would be oblivious to and unaffected by their father’s assault on their mother and the distress it caused is unrealistic.
[25] More fundamentally, this ground of appeal fails to acknowledge the nature of family violence and the harm it causes as the Judge’s comment recognised. The distinction between family harm and other violent offending is reflected in the charge against Mr Kumar, assault on a person in a family relationship.16 It is also supported by the extended definition of “victim” under s 4 of the Victims’ Rights Act 2002 (VRA), which relevantly provides:
(b)for the purposes only of sections 7 and 8, includes—
(i)a person who, through, or by means of, an offence committed by another person, suffers any form of emotional harm; and
(ii)a parent or legal guardian of a child, or of a young person, who falls within subparagraph (i), unless that parent or guardian is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and
(iii)a person who has experienced family violence; and
16 The offence of assault on a person in a family relationship in s 194A of the Crimes Act 1961 was introduced into legislation on 3 December 2018. The offence was part of a suite of family violence reforms implemented when the Family Violence Act 2018 came into force, including offences created to criminalise behaviours and practices that were common but previously not able to be prosecuted as family violence.
(iv)a child or young person residing with a person who falls within subparagraph (iii);17 …
(emphasis added)
[26] Sections 7 and 8 of the VRA—the purposes for which the children are victims— respectively, provide for victims to be treated inter alia by judicial officers with courtesy and compassion, and with respect for their dignity and privacy; and ensure services such as counselling are accessible if the need arises in response to the offending.
[27] This extended definition, encompassing parents, young persons and children by virtue of their familial relationship with the primary victim of family violence recognises the nature of harm caused in a family setting. Notably, irrespective of whether they directly witnessed the family violence, the children would still be victims under the extended definition in s 4 of the VRA even had they not been present in the home at the time of the assault or had it occurred outside the home, or had the offender not been their father or in a current relationship with their mother.18
[28] All of which is to say, the Judge’s acknowledgement that the children also experienced family harm gave effect to s 7 of the VRA and aptly captured the context of the offending. As Mr Brownlie observed, exposure within the home environment to violence by one parent against another carries risk to the children, including by normalising that harm. The Judge did not err by considering the presence of the children (in the home, in this case) as an aggravating factor.
[29] Mr Ross submits the Judge further overstated the gravity of the offending by focusing on the maximum penalty of the assault charge by contrast with a charge of common assault. He submits prosecutorial discretion should not alter the sentence for offending and the culpability assessment must focus on the offence committed, rather than the type of offence.
17 The children are encompassed within subs (b)(iii) and/or (iv) of the definition in s 4, their mother being a person under subpara (iii).
18 See, Family Violence Act 2018, ss 9 and 12, definitions of “family violence” and “family relationship”.
[30] Mr Brownlie submits the introduction of a stand-alone offence of assault on person in family relationship reflects Parliament’s condemnation of violence offending in a family violence context, and that the level of the charge highlights an aggravating factor of the assault: that Mr Kumar assaulted his wife and the mother of his two children.
[31]The Judge acknowledged the charge was:19
…more serious than the Summary Offences Act common assault from 2015 and the threatening behaviour charge from 2018 because it has a significantly higher maximum penalty of two years’ imprisonment. The starting point for me therefore is that this is a more serious offence because of the fact that parliament has identified a more serious consequence follows for someone who is convicted of this type of offending. So, I acknowledge that at the outset.
[32] I do not accept the Judge was influenced by the charge level, as Mr Ross submits. The above passage, read in context, is simply a preliminary observation that the charge, as laid, captures the more serious level of offending in this case than that involved in the previous Summary Offences Act 1981 assault and threatening behaviour charges.
[33] The gravity of the offending is informed by the offender’s conduct and determined by an assessment of the facts.20 Mr Ross submits Mr Kumar’s culpability is low, the assault consisting of Mr Kumar slapping his wife twice, which Mr Kumar described in his comments to police21 and in his affidavit filed at the District Court as “soft”. The low level of the offending is, counsel argues, also supported by the fact [redacted] did not sustain any injury.
[34] It is true the victim did not sustain a physical injury. But it should not be overlooked Mr Kumar used slaps, that is open-handed strikes, to the head (face) and to the thigh/hip. Further, and for similar reasons as discussed above, by this argument Mr Kumar wrongly minimises the additional significance of the assault on his wife, given the defendant accepts his young children were present in the home at the time.
19 Police v Kumar, above n 2, at [15].
20 Nattrass v R [2024] NZHC 2091 at [30], citing J v R [2021] NZCA 690 at [36].
21 Recorded in counsel’s submissions, not included in the summary of facts.
[35] Further, and to the extent counsel’s assessment of Mr Kumar’s culpability examines this assault as an isolated incident, it mischaracterises the incident. As the Judge identified, the true culpability of the conduct lies in Mr Kumar’s re-victimisation of his wife, his (further) use of violence to control her behaviour when the children were present in the home, and that he used violence at all, notwithstanding he had at that time previously completed 13 sessions of a non-violence course.
[36] When considering the gravity of offending, the Court considers all aggravating and mitigating factors relating to the offending and the offender.22 Mitigating factors can include, for example, the completion of rehabilitative courses.23 Mr Kumar’s previous dispositions exemplify that principle in practice: as Judge Doyle acknowledged, Mr Kumar completed the relationship counselling required by police before he received diversion on the common assault charge in 2015, and he completed 13 out of 20 hours of a Living Without Violence course in anticipation of his sentencing for the 2018 threatening behaviour charge.
[37] However, as has become fully apparent only on this appeal, the nature of Mr Kumar’s participation in the courses aimed to address family violence and prevent reoffending is telling. It will be recalled that Mr Kumar applied, initially unsuccessfully, for a discharge without conviction on the 2018 threatening offending. When in 2019 he was not granted the discharge, he did not bother to complete the remaining seven sessions, even when he later sought leave to appeal. As Gault J recorded on appeal in 2021, Mr Kumar saw “no point” in doing so.24
[38] Judge Doyle was alive to this aspect. Still, in oral argument on this appeal I noted a further aspect which it appeared Mr Kumar did not bring to the Judge’s attention in his affidavit or submissions on his current application for discharge on
22 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27], citing A(CA747/2010) v R
[2011] NZCA 328.
23 See, for example, DC v R [2013] NZCA 255 at [37]-[38]. The appellant had pleaded guilty to two representative charges of assault against his two sons for smacking them as a disciplinary measure. He was a first offender, completed two courses to address family violence and undertook counselling. The Court of Appeal found the Judge erred by not taking these factors into account and allowed the appeal, granting a discharge without conviction.
24 Kumar v Police [2021] NZHC 2186 at [17]. Mr Kumar’s position on this point was only clarified by provision of updating information to the High Court judge after the initial appeal hearing, which confirmed the non-completion.
this, his third episode of offending against his wife. Gault J, no doubt concerned for this factor in his decision granting Mr Kumar a discharge without conviction on the threatening behaviour charge,25 as part of that determination directed Mr Kumar was to complete the remaining part of the Living Without Violence programme.26
[39] That was in 2021. In support of his present application Mr Kumar again provided to the District Court a certificate of his completion of 8 further sessions of the non-violence. I queried Mr Ross at the hearing whether Mr Kumar had abided the High Court’s earlier direction—that is, whether any of the 8 further sessions certified were completed before the commission of the present further assault on his wife. As Mr Kumar had not furnished that information to the Court, I directed counsel to provide a memorandum confirming the date of the sessions set out in his latest Certificate. Mr Ross’ memorandum of 17 December confirms that all 8 sessions were completed after Mr Kumar’s present charge.27 Thus, I am satisfied Mr Kumar disregarded the direction of the High Court in 2021 when granting him the previous discharge without conviction.
[40] Mr Kumar’s affidavit raises similar concerns that, despite his guilty plea and (partial) completion of courses, he does not take full responsibility for and minimises his offending. For example, Mr Kumar deposed:
5.3. [Redacted] then accused me of changing the Facebook password. She was yelling at me and swearing at me. She kept asking me why she had to enter a code and accusing me of changing the password.
…
5.5She then started bring up other things and we started to argue.
5.6I walked up to her and slapped her once in the face with an open hand. I think she put up her hand and blocked me. I then slapped her once with an open hand to her thigh.
5.7.I would say it was a soft slap. [redacted] did not receive any marks or injuries as a result of the slaps.
25 And a related failure to answer bail: Kumar v Police, above n 24.
26 At [47] and [50].
27 Counsel advises that Mr Kumar had been supposed to attend 10 sessions from 18 March 2024, he missed two sessions to attend an aunt’s rituals but completed two later sessions gaining certification, completing those sessions on 13 June, the date of his certification.
5.8.I know I should not have slapped her. I should have walked away from the argument. I had told her to “shut up” but she just kept going. It was after this that I slapped her.
5.9.Leading up to the incident, my wife and I experienced ongoing problems that significantly strained our relationship… Although we sought the help of a counsellor and made some progress, my wife could never fully trust me again. This lack of trust led to frequent arguments and tension in our home.
5.10.The continuous verbal and mental abuse I endured began to take a severe toll on me…I reached a breaking point where I could no longer cope with the situation.
(emphasis added)
[41] Mr Kumar’s account of the incident that, in my view, seeks to shift the blame to [redacted], sits uncomfortably alongside his expression of remorse, shame and regret regarding his conduct and his purported intention to learn from the incident. The remainder of his affidavit largely emphasised his concern for the impact a conviction may have on his business interests. Mr Kumar deposed in the penultimate paragraph of his affidavit:
46. Given the nature and implications of such a conviction, I firmly believe that the direct and indirect consequences would be excessively severe compared to the actual gravity of the offence. The offending was two open handed slaps, that left no [mark] or injury to [redacted].
(emphasis added)
[42] I note it does not appear Mr Kumar brought the 2015 incident to the attention of the District Court nor High Court at the proceedings in relation to the 2018 incident, nor to Judge Doyle’s attention in relation to the current charge and application for discharge.28 There is a striking similarity about the 2015 assault—in which the summary of facts discloses Mr Kumar slapped his wife (once) in the face after she would not “shut up”. Plainly, that information would have been relevant, as it remains relevant on the present application, to inform the assessment of gravity of the later offending in a family context; in 2018 and now again in 2024.
[43] I also note a further matter which does not appear to have been ventilated before Judge Doyle. Mr Kumar’s Family Violence Bail Report records a family harm
28 The police prosecutor noted this in his District Court submissions.
investigation in August 2023. This was six months before this assault in February 2024. Mr Kumar is recorded as the predominant aggressor and a police safety order was issued against him which expired in November 2023.
[44] The Court must take into account the victim’s view on the application, although it is not determinative. [Redacted], in an email dated two weeks before Mr Kumar’s sentencing, supported Mr Kumar’s application to be discharged without conviction. There is a discernible shift in [redacted]’s view expressed in that email—compared to at the time of the assault when she called police, and to her views expressed in the victim impact statement two and a half weeks later, when she also supported Mr Kumar’s release on bail to an address other than the family home. I agree with the Crown that may reflect a pattern that is not uncommon in the context of family relationships and family violence. Nevertheless, I take that view into account.
[45] As is now clarified, Mr Kumar’s persistent use of physical violence to attempt to control his wife when she was not doing what he wanted follows his decision to ignore the order of this Court to complete rehabilitative work aimed at preventing any further episode of violence.
[46] Weighing all these aspects, I consider there is no doubt the gravity of Mr Kumar’s offending is, indeed, at a much higher level than his previous offending against his wife in 2018. The Judge was right to so find.
Did the Judge err by understating the consequences of conviction?
[47] The Judge considered the impact on Mr Kumar’s relationship with his wife was a consequence of the offending. Mr Ross submits while this is in part correct, the Judge ignored the conviction precludes Mr Kumar’s future involvement with his and his wife’s franchises, a consequence which has already occurred in relation to Exceed Window & Door Maintenance (Exceed). In turn, Mr Ross submits, this increases [redacted]’s workload and causes more pressure and stress to the family. Mr Ross contends this is an indirect, but serious, consequence of the conviction that serves to penalise [redacted] and their family.
[48] [Redacted] and Mr Kumar work together. [Redacted] is the director and shareholder of three companies, Boss Girl NZ Ltd (trading as Paramount Services Ltd), Property Kleen Services Ltd, and Exceed. Mr Kumar is the Territory Manager for Exceed and the Managing Director of Property Kleen Services. Mr Kumar deposed in his affidavit that he is prohibited from being on-site, that “the franchise contract requires me to have no conviction”, existing contracts “could” be terminated, and he may have difficulty securing new contracts because “potential partners might hesitate” to enter agreements with someone with a criminal record. An email dated 26 May 2024 from Mr Wu, the director and CEO of Paramount Services Ltd, records that all employed personnel are vetted and must obtain Ministry of Justice clearance.
[49] I accept the impacts on Mr Kumar’s business interests may be a serious consequence and that it was the primary basis of Gault J’s decision to discharge Mr Kumar without conviction on appeal for the 2018 threatening behaviour charge.29 However, as Mr Brownlie highlights, there are shortcomings regarding the supporting evidence of the impact of a conviction on Mr Kumar’s current business interests. It is unclear what franchises require Mr Kumar to have no convictions, and no copy of the relevant franchise agreement nor details of the other contracts that Mr Kumar purports could be terminated upon conviction have been put before this Court.
[50] Mr Brownlie points out that vetting processes extend beyond disclosure of convictions to, importantly, discharges without conviction, any family violence incidents regardless of the outcome, and any withdrawn charges or acquittals.30 If that is the case, although no information specifying what the vetting process consists of or what is required to gain “clearance” in relation to Paramount Services Ltd has been provided, then Mr Kumar’s assault of his wife would be disclosed whether or not he is discharged. As well, it seems Mr Kumar would be able to disassociate from the franchises and [redacted] would be able to carry on with the business activities, if necessary, with a replacement employee.
[51] Mr Brownlie submits that Mr Kumar’s reliance on Gault J’s decision granting him a discharge for the 2018 offending does little to assist his argument on this appeal.
29 Kumar v R, above n 24.
30 Citing Parker v Police [2016] NZHC 2524 at [22].
I agree. There, Gault J accepted one of Mr Kumar’s franchises had been terminated, that despite initial information suggesting a new franchise had been established in [redacted]’s name this did not occur, evidence from the franchisor indicated that if Mr Kumar’s conviction was overturned the termination could be reversed, and the termination had resulted in Mr Kumar and [redacted]’s separation.31 Mr Kumar specified the loss he suffered as a result of the conviction, including the franchise valued at $250,000, the $65,000 deposit paid into the business and his marriage.32
[52] In comparison on this appeal, [redacted] is the director of all three franchises Mr Kumar is involved with, there is no evidence that overturning the conviction would allow him to work with Exceed again, Mr Kumar deposed only that “losing customers and contracts would lead to significant revenue drops”, and he and [redacted] remain in a relationship.
[53] Given this evidential lacuna, no error is disclosed in the Judge’s assessment of the consequences of conviction for Mr Kumar. But, even if the Court had up to date evidence of impacts upon his business interests, on the information before me I am not satisfied the consequences would be out of all proportion to the gravity of this offending. The assault is plainly more serious than the 2018 offending, particularly given the pattern of Mr Kumar’s offending against his wife that has emerged in full only upon this appeal—the assault charge in 2015 dealt with by diversion, the threatening behaviour charge in 2018 ultimately discharged, and the family harm investigation in 2023. Additionally, and only on this appeal it has emerged, this further violence occurred after Mr Kumar disregarded the order of this Court to complete the violence prevention programme he had earlier elected not to complete.
[54] In my view, ultimately, Mr Kumar seeks to avoid conviction not by way of refraining from reoffending against his wife but rather by applying for discharge without conviction when he does offend, in reliance on the adverse impact a conviction would have on his business interests. I agree with the Judge’s assessment both as to the seriousness of the consequences of a conviction and that they are not out of all proportion to the gravity of the offence.
31 Kumar v R, above n 24, at [39]-[43].
32 At [34].
Conclusion
[55]The appeal is dismissed.
………………………………………
Preston J
Solicitors:
Crown Solicitor, Invercargill
Copy to:
J A T Ross, Barrister, Invercargill
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