Kumar v Police - [2025] NZHC 2347

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…

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 [2025] NZHC 2347
Case: [2025] NZHC 2347
Decision Date: 19 August 2025

CaseChat Overview and Summary

Mr Kumar appeals against the refusal by Judge C J Harding to discharge him without conviction, instead sentencing him to 100 hours of community work and ordering him to pay $1,000 in emotional harm reparation. The appeal contends that the Judge erred in his assessment of the gravity of the offending and did not adequately consider Mr Kumar's immigration position. The appeal required a fresh consideration of whether a miscarriage of justice had occurred, either due to an error in the conviction or in the assessment of the proportionality of the consequences of the conviction to the gravity of the offending.

The background of the case revealed that Mr Kumar, a 22-year-old male with no previous convictions, had been trespassed from the Junction Bar by the victim. Upon re-entering the bar, he assaulted the victim with knuckle dusters, causing significant injuries. The Judge considered the gravity of the offending to be moderate to severe, taking into account Mr Kumar's plea of guilty and lack of prior convictions. However, the Judge also considered the likely consequences of the conviction, which included a high risk of deportation, making it unlikely that the consequences would be out of proportion to the gravity of the offending.

Ms Webby, counsel for Mr Kumar, argued that the Judge overstated the gravity of the offending and did not sufficiently credit Mr Kumar's efforts towards rehabilitation and his lack of previous convictions. Ms Webby further submitted that the Judge did not adequately consider the impact of the conviction on Mr Kumar's immigration status and the resulting potential for permanent exclusion from New Zealand. Mr Dillon, on behalf of the respondent, argued that the Judge's assessment of the gravity of the offending could have been higher and that the consequences of the conviction were not out of proportion to the offending.

The Court agreed with the Judge's assessment of the gravity of the offending, which was deemed to be medium to severe. The Court also accepted that the likely consequences of the conviction, particularly the risk of deportation, were significant. However, the Court found that the impact of actual deportation on Mr Kumar, given his relatively short time in New Zealand, lack of children of his own, and limited ties to family in the country, did not weigh heavily in the proportionality analysis. The Court concluded that the likelihood of Mr Kumar being deported was not out of proportion to the gravity of the offending and dismissed the appeal.

Orders