Kumar v Police - [2015] NZHC 1132

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,—

…

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 1132
Case: [2015] NZHC 1132
Decision Date: 25 May 2015

CaseChat Overview and Summary

Dinesh Kumar appealed a decision by Judge Paul, who had convicted Kumar for operating a vehicle on a road causing injury and disqualified him from driving for six months. Kumar sought a discharge without conviction, with the aim of applying for a limited licence within the 28-day stand-down period. The police opposed the appeal, contending that the conviction was not disproportionate to the circumstances of the offending, particularly given the serious injury caused to the victim. The court was required to determine whether the conviction was a miscarriage of justice and if the consequences of the conviction were out of all proportion to the gravity of the offence.

The court assessed the gravity of the offence, noting it was at the low to moderate end of the spectrum. Kumar had checked that the road was clear but was mistaken because the victim was obscured by a van. The court considered the consequences of the conviction, including the impact on Kumar's employer and co-workers. The employer had provided a letter to the court stating that Kumar was a highly valued employee and that the company could not afford to lose him and his driving license. The court also considered whether these consequences were out of proportion to the gravity of the offence. The court found that the consequences were disproportionate to the offending, as Kumar could apply for his licence 28 days earlier than would otherwise be the case.

The court set aside the conviction but Kumar remained subject to the sentence of disqualification for six months. The judgment would lie in court for two working days to enable Kumar to make arrangements for the purposes of his employment.

Orders