Kumar v Police
[2024] NZHC 2553
•6 September 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-262
[2024] NZHC 2553
BETWEEN PRANEEL PRAVINDA KUMAR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 2 September 2024 Appearances:
L Smith for Appellant
O J Southern for Respondent
Judgment:
6 September 2024
JUDGMENT OF BLANCHARD J
This judgment was delivered by me on Friday, 6 September 2024 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
Solicitors: Legal Services Commissioner, North Shore City
Kayes Fletcher Walker Ltd (Office of the Crown Solicitor), Manukau Counsel: L O Smith, Auckland
KUMAR v NEW ZEALAND POLICE [2024] NZHC 2553 [6 September 2024]
[1] Mr Kumar pleaded guilty to various charges involving alcohol and driving, and to charges of being in possession of a knife in a public place and failing to answer District Court bail. Judge G A Andrée Wiltens sentenced him to 27 months’ imprisonment.1 Mr Kumar appeals against sentence on the basis that the Judge’s sentencing approach led to a sentence that was manifestly excessive.
The offending
[2]The charges against Mr Kumar were:
(a)driving contrary to an alcohol interlock licence (x 2);2
(b)driving contrary to an alcohol interlock licence (3rd or subsequent) (x 3);3
(c)alcohol interlock licensee’s breath contained alcohol over 250 micrograms;4
(d)driving with excess breath alcohol (3rd or subsequent) (x 2);5
(e)being in possession of a knife in a public place;6 and
(f)failing to answer District Court bail (x 3).7
[3] The offences involving alcohol and driving took place over the period from October 2020 to January 2024.
1 Police v Kumar [2024] NZDC 12284.
2 Land Transport Act 1998, s 32(1)(b) and (3). Maximum penalty: three months’ imprisonment or
$4,500 fine, and disqualification for a period of at least six months.
3 Section 32(1)(b) and (4). Maximum penalty: two years’ imprisonment or $6,000 fine, and disqualification for a period of at least 12 months.
4 Section 57AA(4) and (6). Maximum penalty: two years’ imprisonment or $6,000 fine, and disqualification for a period of at least 12 months.
5 Section 56(1) and (4). Maximum penalty: two years’ imprisonment or $6,000 fine, and disqualification for a period of at least 12 months.
6 Summary Offences Act 1981, s 13A. Maximum penalty: three months’ imprisonment or $2,000 fine.
7 Bail Act 2000, s 38(a). Maximum penalty: one year imprisonment or $2,000 fine.
[4] The offence of being in possession of a knife in a public place occurred on 17 October 2020. Mr Kumar was a passenger in a vehicle in a drive thru at McDonalds, Greenlane. He entered into an argument with the driver of the vehicle behind him during which he exited the vehicle and brandished a flick knife at the victim.
[5] Mr Kumar is a 38-year-old. He has a number of previous convictions for driving with excess breath alcohol and for driving while disqualified. He has other driving convictions and has a conviction for possession of an offensive weapon.
The sentence
[6] For the driving contrary to alcohol interlock and driving with excess breath alcohol, the Judge adopted a starting point of 21 months’ imprisonment. For the possession of the knife and breaches of bail, he added a further seven months. Then, because of Mr Kumar’s previous convictions and the fact that a lot of the offending occurred while he was on bail, he added a further four months’ imprisonment. The result was a total of 32 months’ imprisonment.
[7] He then allowed a discount for the guilty pleas of 15 per cent. That reduced the end sentence to 27 months’ imprisonment. He did not allow any further discounts.
[8]The Judge considered that imprisonment was necessary. Specifically, he said:8
[7] Over the last three years three months, you have continually exposed innocent members of the public to dangerous situations by your flouting court orders, driving when you shouldn’t and driving with excess alcohol in your system so that you have insufficient control to be able to drive safely. In the circumstances, anything less than imprisonment would be inappropriate.
[9] The Judge said the following regarding how he reached 27 months’ imprisonment:9
[9] I will get to that by making some of these driving contrary to the alcohol interlock charges consecutive sentences because the maximum for each is only two years’ imprisonment.
8 Police v Kumar, above n 1, at [7].
9 At [9]–[10].
[10] In terms of the breaches of bail, I am convicting you and discharging you. For the possession of the knife, 15 months’ imprisonment, and for the first four driving contrary to the interlock, 15 months’ imprisonment, and for the two last [excess blood alcohol charges], 12 months consecutive, so that gets me to 27 months’ imprisonment….
[10] He considered it was pointless to impose an interlock regime on Mr Kumar. Instead, he imposed a complete disqualification from driving for three years.
Legal principles
[11] Section 250(2) of the Criminal Procedure Act 2011 provides that the appeal court must allow an appeal if it is satisfied that, for any reason, there is an error in the sentence imposed, and that a different sentence should be imposed. In any other case, the appeal must be dismissed.10
[12] It must be shown that there was an error whether intrinsically, or as a result of additional materials submitted on appeal.11 If there is an error of the requisite character, the appeal court will then form its own view of the appropriate sentence. Even where an error of the requisite character is identified, the appeal court’s focus is on the outcome and whether the end sentence is manifestly excessive.12 The appeal court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.13
Grounds of appeal
[13] In written submissions on Mr Kumar’s behalf, Ms Smith advanced three grounds of appeal. First, she challenged the seven-month uplift for possession of the knife and the breaches of bail. Second, she said that Mr Kumar should have received a 25 per cent discount for his guilty pleas. Third, she contended that Mr Kumar should have received a 10 per cent deduction because his addiction to alcohol was a significant cause of his offending.
10 Criminal Procedure Act 2011, s 250(3).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
12 At [36].
13 At [36].
[14] During the hearing, Ms Smith abandoned the second ground of appeal. I consider the remaining two grounds below.
[15] Before I do so, however, I need to discuss a preliminary point. After the sentencing a report was obtained from a registered clinical psychologist, Jim van Rensburg. Ms Smith sought leave to rely on this report.
Decision
Psychologist’s report
[16]The police opposed the admission of Mr van Rensburg’s report into evidence.
The opposition was on the ground that the report was not fresh, nor cogent.14
[17] It is clearly correct that the report is not fresh. A psychologist’s report could have been obtained for the sentencing.
[18] I also agree that the report is not cogent. It is not cogent because, as Mr van Rensburg said, Mr Kumar is a poor historian and confabulated events. His narrative lacked internal consistencies. He also avoided talking about his drinking problem.
[19] In any case, Ms Smith does not need to rely on the report to make the point that she wishes to make on appeal. She wishes to argue that Mr Kumar is addicted to alcohol and therefore he should have received a discount to his sentence to reflect that. The report confirms that he has an addiction to alcohol, but that is not in dispute and would have been readily apparent to the Judge from the nature of Mr Kumar’s offending and his previous convictions.
[20]I decline leave to admit the new evidence.
14 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; and Mark v R [2019] NZCA 121 at
[16].
Seven-month uplift
[21] Ms Smith submitted that the addition of a further seven months’ imprisonment for possession of the knife and the breaches of bail was too much. She suggested that the Judge fell into error because he overlooked the fact that a charge of possession of an offensive weapon (maximum penalty three years)15 had been amended to a charge of possession of a knife in a public place (maximum penalty three months).16 This would explain why the Judge sentenced Mr Kumar to a concurrent 15 months for possession of the knife when the maximum penalty was only three months’ imprisonment. Ms Smith suggested that I should correct this error by reducing Mr Kumar’s 27-month sentence by five months.
[22] Mr Southern acknowledged that an error was made, and that a lesser uplift may have been appropriate for the balance of the offending. He also accepted that the concurrent sentence imposed on the possession of a knife charge must be substituted as it exceeds the maximum penalty available on that charge. However, Mr Southern argued that the final sentence of 27 months’ imprisonment that the Judge reached remains appropriate.
[23] He submitted that the global starting point of 21 months’ imprisonment for the alcohol and driving offences was too lenient. He said that the offending came in the fourth of the categories suggested by Whata J in Samson v Police.17 It constituted multiple offences with very serious aggravating factors (that is, offending of the worst kind), and therefore a starting point of 20–24 months’ imprisonment is appropriate.
[24] He also referred to the fact that higher starting points have been adopted in cases involving additional charges of driving while disqualified or driving contrary to an alcohol interlock licence. The Court of Appeal in Hughes v R held that a cumulative sentencing approach was appropriate in such cases.18 In Rangi v Police a starting point of 30 months’ imprisonment was not disturbed on appeal in relation to two charges of driving with excess breath alcohol (third or subsequent) and three charges of driving
15 Crimes Act 1961, s 202A(4).
16 See fn 6.
17 Samson v Police [2015] NZHC 748 at [15].
18 Hughes v R [2012] NZCA 388 at [22].
while disqualified, in relation to three instances of offending over about 10 months.19 Similarly, in Makisi v Police a cumulative starting point of 26 months’ imprisonment was not disturbed on appeal in relation to one charge of driving with excess breath alcohol and one charge of driving contrary to an alcohol interlock licence, arising out of the same incident.20
[25] Based on the above, Mr Southern submitted that a starting point of at least 30 months’ imprisonment could have been justified.
[26] For the reasons advanced by Mr Southern, I agree that, despite the error, a starting point of 27 months remains justified.
Alcohol addiction
[27] Ms Smith relied on the decision of the Supreme Court in Berkland v R.21 In that case Mr Berkland received a discount of 10 per cent for his deprived background and the role of addiction in his offending. His offending was involvement in the supply of methamphetamine, to which he was addicted. Ms Smith argued that Mr Kumar should also have received a 10 per cent discount.
[28] As I have said, there is no doubt that Mr Kumar is addicted to alcohol. That is not in dispute. However, Mr Southern made two points in response to Ms Smith’s submissions.
[29] First, the discount of 10 per cent in Berkland was not just for addiction. It was also for Mr Berkland’s deprived background.22 This factor is not relevant to Mr Kumar.
[30] Second, under s 9(3) of the Sentencing Act 2002, the Court must not take into account by way of mitigation the fact that the offender was, at the time of committing the offence, affected by voluntary consumption or use of alcohol or drugs.
19 Rangi v Police [2024] NZHC 1937.
20 Makisi v Police [2023] NZHC 3066.
21 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
22 At [162].
[31] The Supreme Court did not mention s 9(3) in Mr Berkland’s case. Mr Southern suggested this is because Mr Berkland’s and Mr Kumar’s situations are not the same. In Mr Berkland’s case it was his addiction to methamphetamine, rather than his consumption of methamphetamine, that caused him to offend. He offended whether or not he was using methamphetamine in order to feed his addiction. Mr Southern submitted that, in contrast, Mr Kumar’s addiction to alcohol was only indirectly the cause of his offending, and the direct cause of his offending was consumption of alcohol. The addiction causes him to drink. Once he has consumed alcohol, he has a tendency to drive even though he knows he should not, because when he is intoxicated he has a careless attitude.
[32] This is a subtle distinction and Mr Southern did not say that there should be no deduction for Mr Kumar’s addiction. Rather, he suggested that a more “nuanced” approach needs to be taken than that Ms Smith was arguing for.
[33] A five per cent deduction for this factor might have been justified. However, an adjustment of five per cent equates to approximately one and a half months. The Court of Appeal observed in Taylor v R that errors that amount to “credit of such temporal insignificance as to amount to mere tinkering with the sentence” do not justify allowing an appeal.23 I agree with Mr Southern that it would be tinkering if I reduced the sentence by a mere five percent in this case.
Result
[34] I allow the appeal only to reduce Mr Kumar’s concurrent sentence for possession of a knife in a public place. The sentence of 15 months’ imprisonment is quashed and substituted with a sentence of three months’ imprisonment.
[35] The appeal is otherwise dismissed. Mr Kumar’s sentence of 27 months’ imprisonment is confirmed.
Blanchard J
23 Taylor v R [2017] NZCA 524 at [31].
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