Kumar v R - [2014] NZHC 146

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2013-441-37 [2014] NZHC 146

BETWEEN SURJIT KUMAR Appellant

ANDTHE QUEEN Respondent

Hearing: 5 February 2014

Counsel: E J Forster for Appellant
R Guthrie for Respondent

Judgment: 13 February 2014

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)

[1] Mr Kumar pleaded guilty in the District Court to four charges of indecently assaulting a 15 year old girl. The sentence he received was 18 months’ imprisonment. The District Court denied leave to apply for subsequent substitution of home detention.

[2] Mr Kumar appealed that sentence on several grounds. However at the hearing Mr Forster sensibly marshalled his client’s challenge behind a single ground: that the Judge erred in refusing leave to apply subsequently for home detention.

Background

[3] It is unnecessary to cause the victim further distress by detailing the physical invasion of her privacy by Mr Kumar. I will simply repeat what the Judge said in his sentencing notes:

There were two pairs of offences, first in October last year, having consumed a good deal of liquor at a ... gathering, the defendant first of all touched this

KUMAR v R [2014] NZHC 146 [13 February 2014]

young complainant around her buttocks and breasts and invited her to have sex with him. The next morning he attempted to pull her into his bedroom and in the context both of those events are admitted to have had indecent connotations. The second series of events occurred in April. Similarly, after consuming liquor, the defendant went into the victim’s bedroom, began to kiss her around the neck area and then lifted her t-shirt up to expose her breasts and touched her vaginal area over the top of her clothing.

Sentence appealed

[4] Mr Kumar pleaded guilty to four charges of indecent assault on a girl of 15 years of age. He was sentenced by Judge Adeane in the District Court on
12 November 2013. The appellant’s behaviour was found to be “middle order offending ... at worst”. However, the Judge noted that the impact on the victim, her family, the repetitive nature of the offending, and the degree of pre-meditation involved.

[5] The Judge held an appropriate starting point for imprisonment was two years. A 25 per cent discount for his guilty plea was given. He was sentenced to a total of
18 months in prison, with release conditions to endure for six months.

[6] Home detention was not appropriate. In part because of the occupants of the proposed address. But the Judge also declined to grant the appellant leave under s
80I of the Sentencing Act 2002 to apply for home detention at a later date if a suitable address was found.

Appeal

[7] Mr Forster submits that the Court erred in not reserving leave to apply for substitution of imprisonment with home detention. He accepted that the Judge was correct to refuse home detention at the time of sentencing: the address proposed was not suitable. But, he says, the opportunity…

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 R

Details

AGLC: Kumar v R [2014] NZHC 146
Case: [2014] NZHC 146
Decision Date: 13 February 2014

CaseChat Overview and Summary

Kumar v R concerns an appeal against sentence by Surjit Kumar, who was sentenced to 18 months' imprisonment by the District Court for indecently assaulting a 15-year-old girl on multiple occasions. Kumar's appeal focused on the District Court's refusal to grant leave to apply for substitution of his imprisonment with home detention at a later date, should a suitable address be found. Kumar argued that the decision not to reserve such leave was an error, particularly considering the potential for rehabilitation offered by home detention and the limited analysis of this factor by the sentencing judge.

The High Court considered whether the District Court's refusal to grant leave constituted an error in exercising its sentencing discretion. The court noted that the decision to impose home detention where a prison sentence is also appropriate is a discretionary judicial exercise, and the appellate court's role is to identify any error in the exercise of this discretion. The Court of Appeal has previously held that in borderline cases, the sentencing judge's view assumes greater weight due to their familiarity with similar offending in their jurisdiction.

The High Court found that the District Court did not err in declining to grant leave for a future application for home detention. The court held that the offending was very serious, involving a breach of trust towards a vulnerable young person and repeated incidents of abuse. The court also noted the absence of demonstrable and verifiable remorse on Kumar's part, which is crucial for a successful community-based sentence. The pre-sentence report indicated that Kumar had little remorse and insight into his actions, and his ability to comply with community-based sentences was considered low to medium. Given these factors, the High Court concluded that the District Court did not err in its discretion to decline home detention.

The appeal was dismissed, and Kumar's sentence of 18 months' imprisonment was upheld.

Orders