Kumar v Police

[2017] NZHC 3074

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-423

[2017] NZHC 3074

BETWEEN

AMRENDRA KUMAR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

11 December 2017

Counsel:

S Tait for Appellant

S M Murphy for Respondent

Judgment:

11 December 2017

JUDGMENT OF BREWER J

KUMAR v POLICE [2017] NZHC 3074 [11 December 2017]

Solicitors/Counsel:

Shane Tait (Auckland) for Appellant

Kayes Fletcher Walker (Auckland) for Respondent

Introduction

[1]    Mr Kumar appeals against a sentence of six months’ imprisonment handed down against him on 9 November 2017 by Judge GF Hikaka.1 The submission advanced on Mr Kumar’s behalf is that the Judge erred in failing to consider s 16(1) of the Sentencing Act 2002, in failing to adopt the least restrictive sentence and in failing to consider the rehabilitative needs of Mr Kumar. The submission is that had the Judge not erred in these ways, he would have, as he should have, imposed a sentence of home detention and community work.

Background

[2]    Mr Kumar was before Judge Hikaka for sentencing on his eleventh charge of driving with excess breath alcohol and his seventh charge of driving while disqualified.

[3]    Mr Kumar came to the attention of the Police on this occasion when, while driving with a passenger at 4:20 am, he missed his turnoff, stopped, reversed, and did a U-turn through a red light. His breath alcohol reading was 518 micrograms of alcohol per litre of breath.

[4]    On the occasion of Mr Kumar being sentenced for his tenth driving with excess breath alcohol, he was sentenced to seven months’ home detention. This was in February 2013. On conventional sentencing practices, this means that the Judge thought that the sentence of imprisonment which was otherwise appropriate was     14 months’ imprisonment. That was the end point.

District Court

[5]    In this case, Judge Hikaka adopted a global starting point of 10 months’ imprisonment. In my view, that was manifestly light. Then, his Honour reduced the

1      Police v Kumar [2017] NZDC 25629.

sentence by 20 per cent to give credit for the pleas of guilty. Given that Mr Kumar had no choice, given the strength of the evidence against him, that can be seen as generous.

[6]    Finally, because Mr Kumar had made some effort to address his drinking habit, Judge Hikaka gave a further 20 per cent discount, making a total 40 per cent discount. I think that was, in total, extraordinarily generous.

[7]    Thus, we come to a situation where if home detention were to be granted now, given the six months end point, it would be for less than half of the previous sentence of home detention which appears to have had no lasting efficacy when it comes to Mr Kumar’s drinking and driving.

Decision

[8]    It is true that Judge Hikaka did not mention the three points of error which Mr Tait has identified. That does not matter in this context.

[9]    A sentence of home detention could never properly have been within the discretion of Judge Hikaka, given the matters which I have traversed. Indeed, I think Mr Kumar has been very well served by Mr Tait in terms of the sentence which Judge Hikaka was persuaded to impose, and which I will not disturb.

[10]The appeal is dismissed.

Brewer J