[1] On 22 April 2015, Judge Bouchier, sitting in the Pukekohe District Court, convicted the appellant, Mr Kumar, of one charge of assault with a weapon. He was sentenced as follows:

(a) to a pay a fine of $250;

(b) to pay Court costs of $130; and

(c) to pay emotional harm reparation to the complainant of $300. [2] Mr Kumar had pleaded guilty to the charge.

[3] On 7 October 2015, Mr Kumar appealed his conviction. The appeal was filed some considerable time after the appeal period had expired. Mr Kumar seeks leave to appeal out of time. In the event that leave is granted, he seeks to set aside the sentence imposed. He argues that he should be discharged without conviction pursuant to s 106 of the Sentencing Act 2002. He says that he is likely to be deported as a result of the conviction and that this consequence is disproportionate to his offending.

Application for leave to appeal out of time

[4] Mr Fletcher, appearing for the respondent, did not oppose the application for leave to appeal out of time.

[5] It appears from an affidavit which has been filed that Mr Kumar did not raise his immigration status with the solicitor representing him at the time the conviction was entered. Mr Kumar did not then know that a conviction might affect that status. He only became aware that a conviction could result in deportation when he spoke to an immigration lawyer in late August 2015. He says that he contacted a criminal barrister on 28 September 2015, and instructed him to lodge the appeal. The appeal is dated 7 October 2015. I am satisfied that it is appropriate, and in the interests of justice, to grant leave for the appeal to be filed out of time.

Fresh evidence

[6] Mr Kumar has filed an affidavit. It is advanced on the appeal as fresh evidence. It was not before Judge Bouchier when her Honour convicted and sentenced Mr Kumar. Indeed, Judge Boucher was not asked to discharge Mr Kumar without conviction.

[7] Under s 335 of the Criminal Procedure Act 2011, this Court, on appeal, can conduct its own enquiry into evidential matters if it considers it necessary or expedient in the interest of justice to do so.1

[8] The approach taken by the Court to the receipt of fresh evidence has been comprehensively summarised by Tipping J in R v Bain.2 The evidence must be fresh and credible.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kumar v Police

Details

AGLC: Kumar v Police [2015] NZHC 3293
Case: [2015] NZHC 3293
Decision Date: 17 December 2015

CaseChat Overview and Summary

Kumar v Police [2015] NZHC 3293 was an appeal against conviction and sentence by Ravi Kumar, who had been convicted of assault with a weapon by Judge Bouchier in the Pukekohe District Court. Kumar had been sentenced to a fine, costs, and emotional harm reparation. Kumar's appeal was filed out of time. Kumar sought leave to appeal out of time, arguing that he was likely to be deported as a result of his conviction, which he only became aware of after the appeal period had expired. The court granted leave for the appeal to be filed out of time. Kumar sought to set aside the sentence imposed and argued that he should be discharged without conviction under s 106 of the Sentencing Act 2002. The court found that the consequences of the conviction were out of all proportion to the gravity of the offending. Kumar's offending was of low to moderate gravity. Kumar was at a real and appreciable risk of deportation. The court found that the consequences of a conviction in Kumar's particular case were out of all proportion to the gravity of the particular offence committed by Kumar. The appeal was allowed and Kumar's conviction was set aside. Kumar was discharged without conviction and the emotional harm reparation ordered by Judge Bouchier and already paid by Kumar remained with the victim. The Ministry of Justice was ordered to repay to Kumar the fine of $250 and the Court costs of $130, imposed by the Judge, and already paid by Kumar.

Orders