Kumar v Police

[2018] NZHC 1163

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000450

[2018] NZHC 1163

BETWEEN

RAVIKASH KUMAR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

21 May 2018

Counsel:

SJ Lance for Appellant

CA Robertson for Respondent

Judgment:

23 May 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 23 May 2018 at 9 am.

Registrar/Deputy Registrar

Solicitors/Counsel:
SJ Lance, Auckland.

Kayes Fletcher Walker Ltd, Manukau.

KUMAR v POLICE [2018] NZHC 1163 [23 May 2018]

The case

[1]    Mr Ravikash Kumar pleaded guilty to five charges of breaching a protection order. Mr Kumar appeals conviction on the basis he did not want to plead guilty, but was given no effective choice by his counsel, Mr Nicholas Wintour. Both gave evidence in person before me.1 It is common ground the appeal turns on my assessment of their evidence; presenting a defendant with a fait accompli in relation to plea entry would constitute a miscarriage of justice.2

[2]A sentence appeal is also pursued.

Background

[3]    The offending concerned Mr Kumar’s wife, S, who obtained a protection order on 29 September 2011.3 It involved three separate sequences after 10 July 2017, when she and the couple’s two children left for a refuge:

(a)On 16 July 2017 Mr Kumar visited the refuge and drove past it twice. Mr Kumar also telephoned  S  four  times.  In  the  preceding  days, Mr Kumar had contacted the Police and told them he had identified S’s location through tracking her mobile  phone.  Police  twice  warned Mr Kumar to leave his wife alone.

(b)On 24 and 25 July 2017, Mr Kumar sent S text messages framed to imply they had been sent by another. Mr Kumar also called his wife.

(c)On 4 August 2017 Mr Kumar mistakenly telephoned S when handling his mobile phone. But he then sent her a text message: “Sorry don’t call Police by mistake pressed please”.

[4]Mr Wintour acted from 27 July. Mr Kumar pleaded guilty on 31 August.

1      So too, Mr Kumar’s uncle. His evidence did not materially advance either party’s case.

2      Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65].

3      Mr Kumar threatened to kill her two days earlier. He also assaulted her and committed wilful damage the preceding month.

The competing accounts

[5]Mr Kumar filed an affidavit. So too Mr Wintour.

[6]    In his affidavit, Mr Kumar said he told Mr Wintour he wanted to plead not guilty. Mr Kumar said  Mr Wintour  first  raised  the  prospect  of  guilty  pleas  on 31 August—the day he entered them:

…. Mr Wintour came downstairs to see me in the cells. He said that he had made a ‘deal’ with Police that I would “be out of here today if you plead guilty”.

He said he had met with my uncle and discussed the case and told him that I should plead guilty if he (Ravikash) wants to go home.

I told him that I thought I had a defence, so why should I plead guilty? He said if you want to go home plead guilty. I didn’t say anything and left the interview room at the Court cells. When I appeared in Court, my lawyer told the Judge that I was pleading guilty. I was remanded in custody and eventually sentenced to six and a half months imprisonment (by the time I was sentenced I was released on ‘time served’).

[7]    On this account, Mr Wintour never provided any material advice; instead he presented Mr Kumar with a fait accompli to plead guilty.

[8]    In oral evidence, Mr Kumar accepted Mr Wintour met with him on 10 and  14 August.   However, Mr Kumar said each meeting was brief;  between five and   10 minutes. Mr Kumar said he could not recall what was discussed on either.

[9]    In his affidavit, Mr Wintour said he took instructions from Mr Kumar on     14 August.4 Mr Wintour said Mr Kumar:

(a)Accepted [3](a); he had “just wanted to see his children”.

(b)Gave inconsistent instructions in relation to [3](b). Initially, Mr Kumar said the communications to his wife were from a friend of hers called “Sia”. However, Mr Kumar “could not tell me her full name, when or where he had met her, or anything he knew about Sia”. And, he “could not provide me with a telephone record of receiving the call”.

4      Mr Kumar was remanded in custody on 11 August. A bail application was fixed for 14 August.

Mr Wintour said Mr Kumar’s instructions then changed. He accepted a family member had given him his wife’s  new telephone number.  Mr Wintour said Mr Kumar accepted he had attempted to conceal authorship of these messages.

(c)Mr Kumar described [3](c) as a genuine accident, hence his text message apology.

[10]   Mr Wintour said he told Mr Kumar he did not have a defence to the charges save for the telephone call component of (c); Mr Kumar did not intend to call his wife on that occasion. Mr Wintour said Mr Kumar accepted his advice and “agreed to enter guilty pleas”. He did so at his next appearance on 31 August.

[11]   In oral evidence, Mr Wintour said he raised the possibility of guilty pleas with Mr Kumar before 9 August, and Mr Kumar agreed to that prospect being explored with Police. Mr Wintour did so by email on the 9th. Mr Wintour said his meetings with Mr Kumar on 10 and 14 August took some time: the first was approximately an hour; the second involved “at length” discussion. Mr Wintour acknowledged he did not request or prepare a signed instruction in relation to the guilty pleas; he said it was not his habit to do so.5

Analysis

[12]I am satisfied Mr Wintour’s evidence is accurate and that of Mr Kumar is not.

[13]   First, Mr Wintour made a handwritten filenote of his 14 August instructions. Its content is consistent with Mr Wintour’s evidence about Mr Kumar’s instructions. Mr Kumar accepted as much in cross-examination. Second, that filenote concludes: “Discussed resolution proposal”. The notation is consistent with Mr Wintour’s evidence that topic was discussed on 14 August, and hence well before Mr Kumar’s guilty-plea appearance at the end of the month. Third, the summaries of fact annotated by Mr Wintour provide material support for his account of the 10 August meeting. For example, the summary of facts in relation to [3](a) includes the notations: “Knew

5 See postscript at [25].

refuge location. Police told me. ID [his wife] by ‘find my mobile’, wanted to see kids—just  see/look”.  Fourth,  Mr  Wintour’s  conclusion  guilty  pleas  were  in   Mr Kumar’s best interests is consistent with Mr Wintour’s account of Mr Kumar’s instructions: no defence was apparent. And, Mr Kumar accepted Mr Wintour told him just that.   Sixth, Mr Kumar struggled to recall much of what was discussed with    Mr Wintour. Seventh, Mr Kumar’s evidence was marred by a significant inconsistency. Mr Kumar swore an affidavit in support of an appeal against the refusal of bail. In that affidavit, Mr Kumar accepted he had chosen to plead guilty—albeit in the hope of getting bail.

[14]   Mr Lance submitted even if I rejected Mr Kumar’s evidence, justice might still have miscarried as Mr Kumar might have been able to defend the charges on the basis he lacked the requisite criminal intent, and that issue warranted closer attention by Mr Wintour.6 Mr Lance also invited attention to the need for proof of “watching” in relation to the first sequence.

[15]   However, Mr Kumar’s accounts to Mr Wintour left little room for a viable contest in relation to either. Mr Kumar accepted his actions were deliberate.7 These included driving to the refuge to see his children, after first locating his wife through use of mobile phone technology. Some of Mr Kumar’s messages to his wife were composed as if from another. Mr Kumar told Mr Wintour he obtained his wife’s new phone number from other family members. And all this after Mr Kumar had been twice warned by Police to leave his wife alone.   Mr Wintour said he considered    Mr Kumar had no “credible defence”. I agree.

[16]   Consequently, I find Mr Kumar voluntarily entered guilty pleas following succinct but realistic legal advice.

Sentence appeal

[17]   Judge A M Wharepouri sentenced Mr Kumar to a term of six and a half months’ imprisonment.8 Although the sentence has expired, Mr Lance contends it ought never

6      See Merrilees v R [2009] NZCA 59 at [34].

7      Apart from the inadvertent telephone call; see [3](c).

8      Police v Kumar [2017] NZDC 26240.

have been imposed; a non-custodial response was appropriate. Mr Lance highlights the absence of violence and threat of violence, and Mr Kumar’s apparent concern for the welfare of his wife and children. He wanted to know only they were safe.

[18]   I am not persuaded a term of imprisonment was manifestly excessive for five reasons.

[19]   First, the Court of Appeal has held “repeated breaches of protection orders call for a condign sentencing response”, and “where there has been repeat offending over a brief period of time a short term of imprisonment is the proper response”.9 These remarks are apt. They were made when the maximum penalty was two years’ imprisonment. It has since been increased to three.

[20]   Second, Mr Kumar has relevant history. Mr Kumar assaulted his wife and committed wilful damage on 27 August 2011. Mr Kumar threatened to kill her a month later.10

[21]   Third, the offending on 24 and 25 July 2017 was committed while Mr Kumar was on bail for the offending on 16 July 2017. And, the offending on 4 August 2017 was committed while Mr Kumar was on bail for both sets of earlier offending.

[22]   Fourth, all of the offences were committed after Mr Kumar knew his wife and children were at a refuge. His explanation for them—that he wanted to know they were safe—is therefore awkward.

[23]   Fifth, the cases cited by Mr Lance are distinguishable. Hart v Police did not involve  a  defendant  with  a  history  of  violence  against  his  partner,11  and Bartlett v Police does not appear to have involved offending on bail.12

9      R v Nathan CA209/06, 29 November 2006 at [25].

10     Mr Kumar was discharged without conviction in relation to an assault on his wife on 28 December 2009.

11     Hart v Police [2014] NZHC 2741.

12     Bartlett v Police [2016] NZHC 850.

Orders

[24]The appeal is dismissed.

Postscript

[25]   No recitation of authority is required for the proposition a defendant’s fundamental choices in relation to criminal charges should be captured by signed instructions to his or her lawyer. Record keeping of this nature protects both client and practitioner. It also provides an antidote to revisionist history.

……………………………..

Downs J