Kumar v Police HC Auckland CRI-2010-092-4251

[2011] NZHC 159

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-092-4251

DHARMEND KUMAR

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 February 2011

Counsel:         S P Singh for the Appellant

F Cuncannon for the Respondent

Judgment:      28 February 2011

ORAL JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:

Mr S P Singh, Barrister, Otahuhu, Auckland

Ms F Cuncannon, Meredith Connell, Office of the Crown Solicitor, Auckland

KUMAR V NEW ZEALAND POLICE HC AK CRI-2010-092-4251 28 February 2011

[1]      Mr Kumar was sentenced on 22 October 2010 for six offences of driving while disqualified having been convicted at least twice before for the same or a similar offence (s 32(1) of the Land Transport Act 1998), and seven other offences.

[2]      The sentence for all of the offending (and I will come to the particulars of the other offending in due course) was 15 months imprisonment and, for the driving offences, 12 months disqualification from holding or obtaining a driver licence.  The disqualification was the minimum permitted under the Act.

[3]      Mr Kumar has appealed against the sentence of imprisonment and against the disqualification.

[4]      In respect of the appeal against disqualification the original submission was, in its essence, that the Judge had jurisdiction under s 94 of the Land Transport Act to impose a community based sentence rather than disqualification and the Judge was in error in failing to impose a community based sentence.

[5]      The short answer to the appeal against the disqualification is that the Judge did not have jurisdiction to impose a community based sentence rather than disqualification.  Mr Singh, who did not file the notice of appeal or present the initial written submissions, but who has appeared today to assist the Court as well as Mr Kumar, readily acknowledged that the Court did not have jurisdiction in this particular case.

[6]      The reason the Court did not have jurisdiction is because s 94(4)(b) of the Land Transport Act applies.  That subsection provides that s 94 does not apply if the offender is prohibited from applying for a limited licence under s 103(2)(a), (b) or (d) of the Act.  Mr Kumar was, and is, so prohibited by s 103(2)(a); he could not apply for a limited licence because he was subject to indefinite disqualification under s 65 of the Act.  He was disqualified for an indefinite period on 9 May 2002.  The indefinite  disqualification  was  imposed  following  Mr  Kumar’s  conviction  on  a fourth excess breath or blood alcohol charge.

[7]      The appeal against the order for disqualification is therefore dismissed.

[8]      The appeal against the sentence of 15 months imprisonment of course raises the ultimate issue as to whether this sentence for all of the offending the Judge was dealing with was manifestly excessive.   The maximum penalty for driving while disqualified on a third or subsequent occasion is two years imprisonment or a fine of

$6,000.

[9]      In this case it is important to have regard to the point, made regularly by the Court of Appeal, that the appropriateness of the sentence is to be determined having regard to all relevant considerations, irrespective of the process involved in determining the sentence, or the route taken by the Judge in arriving at the sentence. In making this prefatory remark I am not implying that there was any material error in the Judge’s approach.

[10]     The  history  of  motor  vehicle  offences  of  Mr  Kumar,  and  the  current offending by him that the Judge dealt  with, was recorded by Judge Blackie as follows:

[2]       History tells me that starting in 1997 you began appearing before the

Court on charges of driving with excess breath alcohol.   That occurred in

1997, again in 2000, and twice in 2002, and inevitably in 2002 you were disqualified from driving indefinitely because you were seen as a hazard on

the road, someone who was not prepared to observe the law in relation to the

drink driving legislation, and the consequence was, as I say, that you were disqualified indefinitely.  In 2003 you appeared before the Court for driving

whilst disqualified, in other words you ignored the disqualification order.

Again later in 2003, just before Christmas, you appeared for the second time for driving whilst disqualified.  You continued in 2005 for the same offence,

2007 same offence, and 2008 with the same offence, and you were sentenced

to various periods of community work.  I suppose the Court thought that that might be a deterrent to you and that the law in New Zealand in respect of driving while disqualified might be complied with.  Not so, unfortunately.

[3]       On 16 July 2009 you were found to be driving whilst disqualified for the sixth time in Drury, you appeared before the Court and were remanded. Whilst on remand on 22 September 2009 you were found to be driving whilst disqualified on Great South Road, you appeared in Court and you were remanded. Whilst on remand on 6 February 2010 you were found to be driving whilst disqualified in Seresin Crescent, you appeared in Court and were remanded.  On 20 February 2010, 14 days later, you were found to be driving whilst disqualified again on the Great South Road, you appeared in Court and were remanded.  On 17 April 2010 you were found to be driving whilst  disqualified  in  Konini  Avenue,  you  appeared  in  Court  whilst

disqualified, you gave false particulars to the police.  Obviously that was a deliberate effort on your part to try and persuade the police that you were not the driver, somebody else was, in other words to lay a false trail.   Whilst remanded on that, your sixth time since you appeared in 2008, you drove while disqualified in Cambourne Road on 11 June 2010.  Again, you gave the police false particulars, presumably to help put them off the trail. Meanwhile in July of 2010, as I say, while you were remanded you breached the terms of bail.

[4]       So I have the task today to sentence you for six separate occasions for driving while disqualified within a period of 12 months, and you did all these whilst you were on bail.   You successfully manipulated the Court system by constant remands and variations of plea that it remains now to 22

October 2010 that I have to sentence you for the first of those charges, which as I said goes back to July 2009.  It would appear to the Court, and I am sure to anybody observing, that as far as you are concerned the law does not apply.  It applies to other people, but it does not apply to Dharmend Kumar. Now Parliament say that if you drive whilst disqualified on a third and subsequent occasion the penalty that can be imposed is one of two years’ imprisonment.  I have got to sentence you for six separate occasions in the last 12 months, and I find that a very aggravating factor.   In my view the starting point for sentence for you on these charges is now the maximum of two years.   How you have managed to manipulate the system by constant remands from June 2009 right through to now I find difficult to fathom, but you somehow managed to do it.

[5]       But that is not all, because there are other Court orders that have been issued against you and they are domestic protection orders.   Orders designed to protect people who are vulnerable from your unwanted attention. Well on 6 February 2010, whilst on bail of course for these other counts, you went and assaulted a female.  You managed to get the charge changed down to one of summary offences assault, but nevertheless there was an assault against a female and that was in contravention of a domestic protection order that had been made by the Court to prevent this sort of thing.  You appeared before the Court on 8 February and remanded without plea.  On 9 April 2010 you committed exactly the same offence again in respect of the same victim, as she now is, and also on the same date that of course was against the domestic protection order.  So it seems no matter what orders are made by the Court, whether they be disqualified for driving or a domestic protection order, in your mind they only apply to other people, they do not apply to you.

[11]     There have been previous sentences of increasing severity imposed on Mr

Kumar for driving offences, the last sentence having been one of community work.

[12]     Mr Singh made two essential points in his careful submissions for Mr Kumar. The first was that Mr Kumar’s driving offences fell short of offending warranting the maximum  penalty  of  two  years  imprisonment  and  that  the  offending,  assessed overall, should have resulted in a sentence less than imprisonment, and he referred to the possibility of home detention.   The second principal submission was that the

Judge failed to give adequate weight to mitigating factors.  In that regard Mr Singh referred to the consequences for Mr Kumar’s business, which he is unable to attend to, and the difficulties being caused to his wife in trying as best as she can to manage the business.  Mr Singh also submitted that no adequate weight had been given to Mr Kumar’s guilty pleas.

[13]     A submission that a starting point of two years would be manifestly excessive for the driving offences would not be an irresponsible submission.   As Mr Singh quite properly pointed out, other sentences for this type of offending which might result in the maximum sentence being imposed, or at least the maximum being taken as a starting point, will generally be those where the disqualified driving is accompanied  by  other  driving  offences  and  sometimes  of  a  significantly  more serious nature.  I acknowledge the relative force in that submission, but the ultimate enquiry does come back to the point earlier made: is the end sentence of 15 months imprisonment manifestly excessive having regard to all relevant considerations in the particular case?  In that respect regard must be had to the fact that the Judge was also sentencing Mr Kumar for seven other offences which he took into account. This is made clear at [5] of his judgment.  Although at [4] the Judge had already recorded that he was fixing a starting point of two years for the disqualified driving offences, the other offences had to be brought into account at some point given that the Judge decided to impose concurrent sentences for that other offending.

[14]     Some of the other offending was directly related to the driving offences.  All of it occurred over the same period. The other offending was as follows:

(a)      Two  offences  of  giving  false  particulars  in April  and  June  2010, occurring when two of the disqualified driving offences were committed.

(b)      One offence of assault in April 2010.

(c)       One offence of male assaults female in February 2010.

(d)Two offences of breaching protection a order and related to the assault charges.

(e)       One offence of failing to comply with bail in July 2010.

[15]   The connection between at least some of these other offences and the disqualified driving offences, and the further connection of all of those with the various Court appearances, may be seen from the Judge’s comments earlier recorded. I consider that the Judge was entirely correct in coming to the conclusion, that Mr Kumar, over an extended period, showed contempt for the law and further sought to manipulate the system to his advantage in respect of matters that he considered did not apply to him. These were seriously aggravating features which then had to be set against the background of the earlier offending.

[16]     The sentence in this case might have been approached by another Judge in a slightly different way.   In particular, a starting point for the lead offences of disqualified driving might have been fixed at a point below the maximum.  But, as I have already indicated in various ways, that would then need to be adjusted upwards to take account of the other offending, and the circumstances in which the repeated disqualified driving offending occurred.

[17]     In respect of mitigating factors I do not consider that there was any error by the Judge.   There was an allowance, in effect, of close to one-third of the total sentence for all of these matters.  There were no relevant early pleas of guilty.  It is plain that the Judge was alert to the consequences of imprisonment not just to Mr Kumar’s  business,  but  also  to  his  family.    Regrettably  such  matters  are,  often enough, inevitable if a sentence of imprisonment is required.

[18]     For all of these reasons I am not persuaded that the sentence of 15 months imprisonment  imposed in  this  case was  manifestly excessive,  and  the appeal  is dismissed.

[19]     I record in conclusion my appreciation to Mr Singh for stepping in to assist

Mr Kumar and the Court on very short notice.

Peter Woodhouse J