Kumar v Police

[2012] NZHC 88

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-419-000099 [2012] NZHC 88

JANENDRA VITIYLEA KUMAR

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 February 2012

Counsel:         S Bhardwaj for the Appellant

S N Cameron for the Respondent

Judgment:      2 February 2012

(ORAL) JUDGMENT OF DUFFY J

Solicitors:    Bridge  Law  P  O  Box  9114  Waikato  Mail  Centre  Hamilton  3240  for  the

Appellant

Almao  Douch  P  O  Box  19173  (DX  GP20023)  Hamilton  3244  for  the

Respondent

KUMAR v POLICE HC HAM CRI-2011-419-000099 2 February 2012

[1]      I have been greatly assisted by counsel for the appellant and counsel for the

Crown in dealing with this matter today.

[2]      It has become clear that the sentencing of the appellant in the District Court has miscarried.

[3]      The appellant appeared at a status hearing and was given an indication by the District Court judge that it was probable that a non-custodial sentence would be imposed, the likely sentence being home detention.   On this basis, the appellant changed his plea to guilty.   A pre-sentence report and a report on the appellant’s suitability for a sentence of home detention were ordered.  More than one report was prepared, but ultimately, the writer of the report recommended a sentence of home detention.

[4]      When   the   appellant   came   up   for   sentence,   he   was   before   another District Court judge, who sentenced the appellant to six months’ imprisonment, as well as imposing a period of disqualification from driving.  At [15] of the sentencing notes, the Judge recorded that he was aware that in a “status-type environment it was said that there may be imposed for you a non-custodial sentence”.  The Judge went on to say that he was not bound by any such indication, which is correct.

[5]      There is no record in the sentencing notes of the Judge offering the appellant an opportunity to change his plea to one of not guilty.  Reading the sentencing notes, one gains the impression that the sentencing process simply carried on with a custodial sentence being imposed.

[6]      Regrettably, counsel who appeared for the appellant at the sentencing has not provided an affidavit to cover the point regarding whether the appellant was given an opportunity to change his plea before the custodial sentence was imposed on him. The absence of such information is unsatisfactory.

[7]      However, the appellant has waived legal privilege so that aspects of his file recording what was said at the status hearing have been made available for the respondent’s counsel to view.  The point has now been reached where the respondent

responsibly accepts that I should approach the appeal on the basis that an irregularity has occurred, namely a custodial sentence was imposed without the appellant first being given the opportunity to vacate the guilty plea and proceed to a defended hearing.   The respondent accepts that this would be contrary to the requisite procedural requirements when there is a departure from a sentence indication given at a status hearing: see R v Gemmell [2000] 1 NZLR 695 (CA); R v Edwards (2000)

17 CRNZ 604 (CA); and Zaheed v R [2010] NZCA 573, (2011) 25 NZTC 20-018. In Edwards, the Court of Appeal at [11] confirmed its approval of the approach that was followed in Gemmell:

[11]      In R v Gemmell [2000] 1 NZLR 695, this Court commented on the difficulties inherent in the giving of indications by District Court Judges of possible sentences when those indications are given prior to conviction, without full submissions by both counsel and, at times, without the aid of other essential material such as pre-sentence reports and victim impact statements. In Gemmell this Court adopted the course of allowing the appeal, setting aside the convictions and remitting the matter to the District Court for the appellant to have the opportunity to plead again. The Court took the view that  a  miscarriage  of  justice  may  occur  when  a  guilty  plea  is  entered following an indicated sentence range but a sentence is later imposed which is considerably in excess of the indicated range and is imposed without offering the appellant an opportunity to seek leave to set aside the guilty plea (see paras 11 and 12 p 698).

[8]      Given the acknowledged procedural irregularity, the key issue before me today is whether I should deal with the matter as an appeal against sentence by quashing the custodial sentence imposed on Mr Kumar and substituting it with a sentence of home detention, or whether I should allow the appeal against conviction and remit the entire matter back to the District Court for disposition.

[9]      Because of the pressure of time, I do not propose to set out the reasons now for the way in which I have decided that I should deal with the matter.  Reasons will be issued later.   I have decided that I should deal with the matter by allowing the appeal  insofar  as  it  relates  to  the  sentence  of  imprisonment.    That  sentence  is quashed.  In its place, I impose a sentence of three months’ home detention, with the following conditions:

(i)The appellant is to reside at 4 Matthews Crescent, Melville, Hamilton, and he is not to move from that address without prior written permission of a probation officer; and

(ii)He is to attend an assessment for alcohol/drug misuse and, if assessed as suitable, to attend and complete counselling/programmes to the satisfaction of a probation officer and service provider.

[10]     It is accepted that the implementation of the sentence of home detention will not be able to take place until Tuesday, 7  February 2012.   Accordingly, in the meantime, I propose to grant the appellant bail on condition that he travels immediately on his release from prison to the residence at 4 Matthews Crescent, Melville, Hamilton, where he is to remain subject to a 24 hour curfew until the sentence of home detention commences.

[11]     The period of disqualification from driving is unaffected by this decision.

Duffy J