Kumar v Police - [2024] NZHC 2553

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…

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 [2024] NZHC 2553
Case: [2024] NZHC 2553
Decision Date: 6 September 2024

CaseChat Overview and Summary

The case of Kumar v Police involved Mr. Kumar appealing against the sentence he received, which was 27 months' imprisonment for multiple offences, including driving contrary to an alcohol interlock licence, driving with excess breath alcohol, possession of a knife in a public place, and failing to answer District Court bail. The appeal was based on the argument that the Judge's sentencing approach led to a sentence that was manifestly excessive. The legal issues before the court were whether the seven-month uplift for the possession of the knife and the breaches of bail was appropriate, and whether Mr. Kumar should have received a greater discount for his guilty pleas and his addiction to alcohol.

The court acknowledged an error in sentencing regarding the possession of the knife, as the concurrent sentence of 15 months exceeded the maximum penalty of three months for that offence. However, it was found that a starting point of 21 months for the alcohol and driving offences was appropriate, and a global starting point of 27 months remained justified. The court also considered the argument that Mr. Kumar should have received a 10% discount for his addiction to alcohol, but it was held that the discount should be more nuanced, potentially around 5%, which would be temporally insignificant. As a result, the appeal was allowed only to reduce Mr. Kumar's concurrent sentence for possession of a knife in a public place to three months' imprisonment, while the sentence of 27 months' imprisonment was otherwise confirmed.

The final orders of the court were to quash the sentence of 15 months' imprisonment for possession of a knife in a public place and to substitute it with a sentence of three months' imprisonment. The sentence of 27 months' imprisonment was otherwise confirmed.

Orders