[1] Mr Kumar appeals against sentences imposed in the District Court at Invercargill on 17 March 2015.1 The sentencing Judge said that, by far, the more serious matters the appellant faced related to breaches of protection orders on 25
December 2014 and 21 January 2015, and the charge of driving while disqualified on

25 December 2015.

[2] Offending in mid-2013 is relevant in assessing the seriousness of the breaches of protection orders in early 2015. It is also relevant because the sentencing Judge had to reconsider the sentences that were imposed for that
offending.

1 R v Kumar [2015] NZDC 4475.

KUMAR v POLICE [2015] NZHC 1575 [7 July 2015]

[3] In June 2013, Mr Kumar was 19 years of age. His relationship with his partner, aged 16, ended. She was pregnant with his child. Mr Kumar could not accept that the relationship was over.

[4] On 9 June 2013, Mr Kumar was involved in a domestic incident with his ex- partner. As a result, the Police issued a Police safety order under the Domestic Violence Act 1995. This stated that he was not to have any contact with the victim by any means for a period of five days. A trespass notice was also issued for him to stay away from her home in Invercargill. On 10 June 2013, Mr Kumar began to contact the victim by text message and over the next two days sent 90 unsolicited text messages to the victim. She did not reply, reported the matter to the Police and obtained a new cell phone number through getting a new SIM card. Soon after, Mr Kumar unlawfully entered her home when she was away from it. He obtained the packaging for her new SIM card and on it her new cell phone number which he immediately started texting.

[5] On 13 June 2013, the victim obtained a temporary protection order. The day after the protection order was served on Mr Kumar he drove up behind her on two occasions; on the second occasion he tried to talk to her and kept following her. The protection order was made final on 23 September 2013.

[6] On 17 December 2013, Mr Kumar was sentenced to 300 hours of community work, supervision for one year and 15 months’ disqualification from driving for various offences, namely, refusing to accompany an enforcement officer on 27
October 2013, operating a motor vehicle causing sustained loss of traction on 17

August 2013, operating a motor vehicle causing sustained loss of traction and driving with excess blood alcohol content on 26 October 2013, contravening a protection order on 14 June 2013 and burglary and wilful trespass committed on 13
June 2013.

[7] On 22…

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 1575
Case: [2015] NZHC 1575
Decision Date: 7 July 2015

CaseChat Overview and Summary

In Kumar v Police, Mr Kumar appealed against the sentence imposed by the District Court at Invercargill, which included a 16-month imprisonment term for breaching a protection order on two occasions and driving while disqualified. The appeal was based on the argument that the sentence was manifestly excessive and not in line with the principles established in Woods v Police. The court examined the nature of Mr Kumar's offending, which involved breaches of protection orders and driving while disqualified, and assessed whether the starting point and ultimate sentence were appropriate.

The court found that the starting point of 18 months for the offences was manifestly excessive and that a starting point of 12 months would have been appropriate, considering the previous breach, the offending while on bail, and the associated driving while disqualified. The court also noted that the ultimate sentence of 16 months, after allowing for a four-month uplift and a six-month credit for a guilty plea, was manifestly excessive. The court decided on a sentence of nine months for the two breaches of the protection order and one month for the charge of driving while disqualified, to be served concurrently. This resulted in a total sentence of 10 months’ imprisonment for Mr Kumar.

The court's decision highlights the importance of considering appropriate sentencing levels and other means of dealing with offenders in similar circumstances when determining the sentence for breach of protection orders. The court also emphasised the need to uphold protection orders and deal firmly with deliberate breaches of them.

Orders