Kumar v Police - [2014] NZHC 1659

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-111 [2014] NZHC 1659

BETWEEN
RANISH KUMAR

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 July 2014

Counsel:

M P Hislop for the Appellant
R K Thomson for the Respondent

Judgment:

15 July 2014

JUDGMENT OF BROWN J

This judgment was delivered by me on 15 July 2014 at 5.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Solicitors, Auckland
Counsel: M P Hislop, Auckland

KUMAR v POLICE [2014] NZHC 1659 [15 July 2014]

Introduction

[1] On 19 March 2014 the appellant was convicted by Judge B A Gibson in the

District Court at Auckland of four offences:

(a) On 1 September 2012 resisting a constable acting in the execution of his duty in contravention of s 23(a) of the Summary Offences Act
1981;

(b) Having been sentenced to home detention on 14 May 2012, on

1 September 2012 breaching, without reasonable excuse, a special condition, namely not to consume alcohol in contravention of s 80S of the Sentencing Act 2002;

(c) On 1 September 2012 assaulting Constable Pearce with intent to obstruct him in the execution of his duty in contravention of s 192(2) of the Crimes Act 1961; and

(d)On 1 September 2012 assaulting Sergeant Lindner with intent to obstruct him in the execution of his duty in contravention of s 192(2) of the Crimes Act 1961.

[2] On 7 May 2014 the appellant was sentenced by Judge Gibson to 12 months imprisonment on the two charges of assault on police and three months imprisonment on the other two charges, all sentences to be served concurrently.

[3] The appellant appeals against his convictions and sentence.

Background facts

[4] The facts are recorded in detail in the oral judgment of Judge Gibson dated

19 March 2014.

[5] In brief, on the evening of 1 September 2012 the Police received a number of calls from the appellant’s sister who claimed that the appellant was acting aggressively towards other persons at the appellant’s family home where he was

serving a sentence of home detention and that she believed he had been consuming alcohol.

[6] Sergeant Lindner and Constable Pearce, together with a female constable, went to the appellant’s home, observed that the appellant smelled of alcohol and requested him to accompany them outside to speak with them privately rather than in front of his family. At that point the appellant stood up and began shouting. He was asked several times to step outside which he refused to do. The events which followed are recorded in the following passages from the judgment of 19 March
2014:

[12] At that point, on the constable’s evidence, Constable Pearce stepped forward in an attempt to lead Mr Kumar from the house but the evidence of both constables was that the defendant lunged towards Constable Pearce and attempted to strike him in the head. Constable Pearce said he was able to parry that and push Mr Kumar back.

[13] Once 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 [2014] NZHC 1659
Case: [2014] NZHC 1659
Decision Date: 15 July 2014

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Ranis Kumar, appealed against his conviction and sentence by the District Court at Auckland. Kumar was convicted of resisting a constable, breaching a special condition, and assaulting two police officers. Kumar was sentenced to 12 months imprisonment for the assault charges and 3 months imprisonment for the other two charges, all to be served concurrently. Kumar appealed against his convictions and sentence, arguing that the District Court Judge did not adequately consider the defence witnesses' evidence and the injuries he sustained during the incident. Kumar also argued that the sentence was manifestly excessive and that a community-based sentence would have been more appropriate.

The High Court found that the District Court Judge had correctly considered the evidence presented and determined that the police officers' evidence was more credible. The Court held that the Judge's findings on the evidence were not in error, and the appeal against conviction was dismissed. However, the Court found that the starting point of 10 months imprisonment was excessive. The Court considered the various sentences imposed for similar offending and noted that a starting point of 4 months imprisonment, with an uplift of 1 month to reflect Kumar's previous convictions for violence, would be more appropriate. The sentence of 12 months imprisonment was quashed, and a sentence of 5 months imprisonment was substituted in respect of the two charges of assaulting a police officer. The sentences of 3 months imprisonment on the other two charges remained, with all sentences to be served concurrently.

Orders