Kumar v Police - [2012] NZHC 946

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000103 [2012] NZHC 946

BETWEEN AJNESH SUNNI KUMAR Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 7 May 2012

Appearances: S Thode for Appellant
K Francis for Respondent

Judgment: 8 May 2012

JUDGMENT OF VENNING J

This judgment was delivered by me on 8 May 2012 at 12 noon, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: S Thode, PO Box 74-199, Greenlane, Auckland office@sumudub.com
Crown Solicitor, Auckland kim.francis@meredithconnell.co.nz

KUMAR V NEW ZEALAND POLICE HC AK CRI-2012-404-000103 [8 May 2012]

Introduction

[1] The appellant pleaded guilty to one charge of theft under s 219 of the Crimes Act 1961. On 16 March 2012 Judge Clapham rejected the appellant’s application for a discharge without conviction, convicted and fined him $500 and ordered him to pay Court costs of $132.89.

Preliminary matter

[2] The appellant needs leave to bring this appeal against conviction out of time. The appeal was initially lodged as an appeal against sentence. Mrs Thode accepts it should have been an appeal against conviction. The appeal against conviction is out of time. Mr Francis does not oppose leave being granted. Leave is granted to bring the appeal out of time.

Background facts

[3] Mr Kumar was a courier driver employed by PBT Couriers. His duties included visiting various businesses in the Auckland area where he uplifted items for delivery, scanned them as received by him and then delivered them to the depot. On
19 August 2008 Mr Motorcycles, a retail shop in Pukekohe, Auckland, ordered motorcross equipment from Sports Promotion Limited. The order comprised two sets of motorcycle boots. The two pairs of boots had a wholesale value of $437.18. On or about 19 August 2008 Mr Kumar collected the two pairs of motorcross boots from Sports Promotion Limited in the course of his work as a courier driver. He did not scan the property onto his personal computer to log the fact that he had picked the items up. Some days later he took the items from the van and stored them at his home. On 28 August 2008 the police executed a search warrant at his home and located the items. No reparation was sought as the property was recovered in total.

[4] The appellant was initially charged under s 220 of the Crimes Act. When the charge was amended to a count under s 219 he pleaded guilty.

District Court decision

[5] In declining the application for discharge without conviction the Judge directed himself to the relevant authorities of R v Hughes[1] and Blythe v R.[2] He took the view the offending was grave, noting the breach of trust involved. When considering whether the consequences of the conviction would be out of proportion to the gravity of the offence the Judge noted that the real estate industry involved trust in that sales persons were permitted into homes and concluded:
[1] R v Hughes [2009] 3 NZLR 222 (CA).
[2] Blythe v R [2011]…

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 [2012] NZHC 946
Case: [2012] NZHC 946
Decision Date: 8 May 2012

CaseChat Overview and Summary

The appeal in Kumar v Police was brought by the appellant, Ajnesh Sunni Kumar, against his conviction in the District Court for theft under s 219 of the Crimes Act 1961. The District Court had rejected the appellant's application for a discharge without conviction, convicting him and imposing a fine of $500 along with court costs. The central issue in this appeal was whether the appellant should have been granted a discharge without conviction considering the significant consequences of the conviction on his career aspirations.

The legal issues before the court included whether the consequences of the conviction were disproportionate to the gravity of the offence and whether the court should exercise its discretion to grant a discharge without conviction under s 106 of the Crimes Act 1961. The court had to balance the seriousness of the theft, which involved a breach of trust, against the appellant's career prospects in the real estate industry, which were severely impacted by the conviction.

The court found that the District Court judge had overlooked the significant impact of the conviction on the appellant's future employment in real estate. Section 37 of the Real Estate Agents Act 2008 prohibits individuals convicted of crimes involving dishonesty from applying for a real estate agent's licence for ten years. The court considered the gravity of the theft, noting that the stolen items were undamaged and returned intact, and that the offence was the least serious form of theft under the Crimes Act. Weighing these factors against the substantial career consequences, the court concluded that the conviction would be out of proportion to the gravity of the offence. The court also highlighted the appellant's clean criminal record and his genuine desire to work in real estate, which had been thwarted by the pending charge.

As a result, the appeal was allowed, the conviction was set aside, and the appellant was discharged without conviction. However, he was ordered to pay the fine of $500 and the court costs as determined by the District Court.

Orders