Kumar v Police
[2025] NZHC 2347
•19 August 2025
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2025-419-000066
[2025] NZHC 2347
BETWEEN AMAN KUMAR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 19 August 2025 Counsel:
R E Webby for Appellant K A Dillon for Respondent
Judgment:
19 August 2025
JUDGMENT OF BREWER J
Solicitors/Counsel:
Rebekah Webby (Tauranga) for Appellant Hamilton Legal (Hamilton) for Respondent
KUMAR v POLICE [2025] NZHC 2347 [19 August 2025]
Introduction
[1] Mr Kumar appeals the refusal by Judge C J Harding on 16 June 2025 to discharge him without conviction.1
[2] Mr Kumar was sentenced by Judge Harding to 100 hours’ community work and ordered to pay emotional harm reparation of $1,000 in response to his plea of guilty to one charge of injuring with intent to injure.2
[3] It is contended on appeal that the Judge erred in his assessment of the gravity of the offending and did not carry out a detailed assessment of Mr Kumar’s immigration position.
[4] An appeal against a refusal to grant a discharge without conviction is a composite appeal against conviction and sentence. I have to consider the issues afresh. The ultimate question is whether a miscarriage of justice has occurred, arising either from a material error by the Judge in entering a conviction, or in his assessment of whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.3
Background
[5] The summary of facts sets out the offending to which Mr Kumar pleaded guilty, succinctly:
INTRODUCTION
The Defendant is a 22-year old male who had previously been Verbally Trespassed from the Junction Bar by the Victim.
CIRCUMSTANCES
On Friday 30th September at approximately 7:45pm the Defendant has entered the Junction Bar situated at 700 Pollen Street, Thames.
As the Defendant entered, they have spotted the Victim behind the bar and pulled the fingers at them.
1 Police v Kumar [2025] NZDC 14708.
2 Crimes Act 1961, s 189(2); maximum penalty, five years’ imprisonment.
3 Sentencing Act 2002, s 107.
The Defendant has walked over towards the Victim who was now standing at the edge of the Bar to serve the Defendant.
The Defendant has stopped and put a pair of Knuckle Dusters on his right hand and swung a punch which connected to the left hand side of the Victims head.
The Defendant punched the Victim a further three times which has caused the Victim to fall to the ground.
The Defendant backed away from the Victim and left the bar.
INJURIES TO VICTIM
The Victim was treated at Thames Hospital Emergency Department.
The Victim suffered a large cut to the side of the head along with swelling and concussion.
[6] Mr Kumar has no previous convictions. His personal circumstances were before the Judge in two pre-sentence reports dated 24 January 2025 and 24 March 2025 respectively.
[7] Mr Kumar came to New Zealand from India some five or six years ago. Ms Webby told me that her instructions are that he came at the age of 16 in the care of an aunt. He gained New Zealand residency some three years ago and is 22 years old. Mr Kumar has not yet applied for permanent residency and is awaiting the outcome of the sentencing process before doing so.
[8] Mr Kumar was an itinerant worker in the orchards in the Katikati and Tauranga areas. He lived in his vehicle during the week and returned to Thames in the weekend to spend time with his partner. In the second pre-sentence report, Mr Kumar is recorded as saying that he now has fulltime employment at a packhouse working the nightshift. This will often extend to work in the weekends. He continues to live in his car and only returns to Thames on Fridays to visit his partner at her home address.
[9] In both reports, as Ms Webby emphasises, Mr Kumar is assessed as having a low risk of re-offending. Given the difficulties Mr Kumar’s itinerant lifestyle would raise in respect of any sentence involving constraints on his liberty, the reports supported a discharge without conviction.
The Judge’s decision
[10] The central issue for the Judge was the weight to be given to the affidavit of Mr Burke, a lawyer practising in the immigration area:
[6] In support of your application there has been filed an affidavit from a lawyer who practices in the immigration area. He says there is a clear risk of actual deportation and a high likelihood that you will be served with a deportation liability notice. He has considered matters further than that and says you will become liable for deportation under the notice, that that will be the case for 10 years, that there is a real and appreciable risk that the liability notice will be issued, and that any appeal against your liability for deportation would be unsuccessful in these circumstances. If I translate that and reduce it to shorthand it is that you are likely to be deported.
[11] The Judge identified the gravity of the offending, taking into account Mr Kumar’s plea of guilty, his lack of convictions, and steps taken towards seeking help for his alcohol use through counselling. The Judge considered that, overall, the seriousness of Mr Kumar’s offending was moderate to severe. The Judge then said:
[11] The direct consequence is likely to be that you will be deported. I am therefore required to determine whether the consequences would be out of all proportion to the gravity of the offending. Out of all proportion is a serious test. The fact that you might be or are likely to be deported does not answer the question. I really have to stand back and ask whether that would be a reasonable consequence for an unprovoked attack with weapons on a person doing their job in a bar. I regret I conclude that that would not be out of all proportion and therefore I do not discharge you without conviction. The test cannot be met.
The appeal
[12] Ms Webby for Mr Kumar submits that the Judge overstated the gravity of the offending:
(a)The weapon he used (the knuckle dusters) is not as dangerous as other weapons, such as a broken bottle or a bat;
(b)A photograph of the victim after the offending shows a relatively minor injury:
The medical notes recorded a 2 cm puncture wound above the left forehead and a small skin tear measuring 0.5 cm approximately superior and inferior to the puncture wound.
[13] Accordingly, Ms Webby submits the violence itself was at the lower end of the scale.
[14] Ms Webby submits the Judge should have given greater credit to Mr Kumar for undertaking counselling and his lack of previous convictions. Ms Webby submits the Judge did not take into account that Mr Kumar was prepared to undertake restorative justice.
[15]As to Mr Kumar’s immigration status, Ms Webby submits:
18.Given the expert evidence that has been filed in support of Mr Kumar’s future immigration status, it is submitted that the presence of a conviction would make it difficult for Mr Kumar to persuade an immigration officer to exercise his or her discretion to cancel a deportation order under s 177. Should Mr Kumar leave New Zealand he will need to obtain a character waiver which will present a significant barrier to him gaining a visa in the future.
19.Absent a conviction, Immigration New Zealand would remain on notice as to the facts of the charges Mr Kumar faced but any future application will be assessed without the significant impediment of the character waiver requirements.
20.While the Court at paragraph 11 determined that the direct consequence is that he would likely be deported, the Court was of the view that the consequences would be out of proportion to the gravity of the offending. That is because of the categorisation of the offending to start with.
21.The Court did not specifically consider the inability for Mr Kumar to get back into the country, the character test not being met and the impact that would have had on Mr Kumar’s partner and her children, who he is the father figure for and the fact that it is likely he would be permanently excluded.
[16] Ms Webby discusses the affidavit of the immigration lawyer (Mr Edward Burke) and submits that both the liability for deportation and risk of actual deportation should be treated as consequences of conviction under s 107.
[17] Mr Dillon, in addition to his submission that the Judge did not err in his proportionality analysis, submits that the assessment of the gravity of the offending
could have been higher. Mr Dillon submits that the offending fits within band 2 of
Nuku4 and that a sentence of imprisonment, at least as a starting point, was warranted.
Discussion
[18] I start with the assessment of the gravity of Mr Kumar’s offending. I have quoted the summary of facts to which Mr Kumar pleaded guilty, and there is no material reason for me to go behind it.
[19] Mr Kumar had been trespassed from the bar in question by the victim. He went back some days later armed with knuckle dusters. It is to be inferred that he planned to assault the victim since he did that without delay upon entering the bar. There was no provocation. There were repeated punches to the head of the victim using the knuckle dusters as a weapon. The victim was knocked to the ground and received treatment in hospital. He had a large cut and a concussion. The victim impact statements attest to the victim being traumatised and suffering ongoing psychological effects.
[20] I agree with the Judge that, taking into account the mitigating factors — including those emphasised by Ms Webby — the gravity of the offending can be characterised as medium to severe.
[21] As to the consequences to Mr Kumar of the entry of a conviction, I agree with the Judge that the likely effect on his immigration status is the operative one.
[22] I accept Ms Webby’s submission that both the liability for deportation and the risk of actual deportation are consequences of a conviction and must be taken into account in the proportionality assessment.
[23] Section 106 of the Sentencing Act provides a Judge with the power to discharge an offender without conviction. Section 107 of that Act provides:
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
4 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
[24] The uncontested evidence of Mr Burke was that the entry of a conviction would render Mr Kumar liable for deportation and, given the nature of the offence, actual deportation would be likely. The Judge, in shorthand, appreciated that.
[25] In my view, an assessment of the impact on a defendant of actual deportation if the risk is realised must be taken into account in the proportionality analysis. Here, Mr Kumar has been in New Zealand for a relatively short period. He is single and has largely been an itinerant worker in the orchard industry. He lives, for most part, in his car. He has a partner who he sees on a weekly basis. The partner has two children, and no doubt there is a mutual affection between them and Mr Kumar. Nevertheless, Mr Kumar does not have children of his own. It is not suggested he has any family in New Zealand with whom he has close ties. The impact on Mr Kumar if he were to be deported to India would, I consider, not be such as to attract real weight in the proportionality assessment.
[26] It bears repeating that the statutory test is not one of simple imbalance. It does not stipulate that the threshold for discharge is if the direct and indirect consequences of a conviction would be out of proportion to the gravity of the offending. The threshold is much higher than that. The consequences of a conviction must be out of all proportion to the gravity of the offending.
Decision
[27] I find myself in agreement with the Judge. The likelihood of Mr Kumar being deported as a result of his conviction is not out of all proportion to the gravity of his offending.
[28]The appeal is dismissed.
Brewer J
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