Kumar v The Queen

[2021] NZHC 3203

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2021-463-126

[2021] NZHC 3203

BETWEEN

ROGER KUMAR

Appellant

AND

THE QUEEN

Respondent

Hearing:	26 November 2021
Appearances:	C Horsley for Appellant B Smith for Respondent
Judgment:	26 November 2021

ORAL JUDGMENT OF LANG J

[on appeal against sentence]

Solicitors:

Crown Solicitor, Tauranga

KUMAR v R [2021] NZHC 3203 [26 November 2021]

[1]        Mr Kumar pleaded guilty to charges of injuring with intent to injure and wilful damage. On 18 October 2021 Judge W Lawson sentenced him to ten months home detention.1

[2]        Mr Kumar appeals against sentence. He contends the Judge failed to give him adequate discounts for mitigating factors. He also argues the Judge ought to have converted the end sentence into a sentence of community detention.

The offending

[3]        The Judge had before him a considerable amount of information regarding the background that led to the offending. This relates to a long-standing dispute between two sets of neighbours. It is obvious from the Judge’s sentencing remarks that there had been a lengthy period of hostility between Mr Kumar’s household and the complainant’s household next door. This had resulted in the police being called on earlier occasions, as well as threats and abuse being directed between members of the two households.

[4]        The events that led to the present offending occurred after one of the neighbours lit a fire on 6 May 2020. Smoke travelled over the fence and was contaminating laundry Mr Kumar’s wife had hung on the line. A verbal altercation then occurred between Mr Kumar’s wife and the neighbour. This evidently included threats directed towards members of Mr Kumar’s family.

[5]        Mr Kumar’s wife telephoned him at work. He immediately told his employer to call 111 and ask the police to come to his address. He then went home and spoke to his wife. After learning from her what had happened, he went next door. He smashed his way in through a front door and confronted the neighbour with whom his wife had had the argument. It was common ground at sentencing that during this argument the neighbour was armed with a metal bar.

[6]        During the argument Mr Kumar picked up a piece of wood. He used this to strike the complainant in the head with sufficient force to cause a laceration. He

1      R v Kumar [2021] NZDC 20554.

eventually stopped when his son and cousin intervened. The complainant sustained a wound to his head that required six stitches to repair. He also suffered a wound to his arm that required four stitches.

The Judge’s decision

[7]        The Judge acknowledged the background to the offending and selected a starting point of two years two months imprisonment on the lead charge of injuring with intent to injure. He applied an uplift of one month to reflect the charge of willful damage.

[8]        The Judge then applied a discount of 25 per cent to reflect mitigating factors. This produced an end sentence of 20 months imprisonment. The Judge was satisfied Mr Kumar was an appropriate candidate for home detention and directed that he serve a sentence of ten months home detention.

The appeal

[9]        On Mr Kumar’s behalf Mr Horsley contends the Judge failed to give Mr Kumar credit for two mitigating factors. The first was that, at 38 years of age, this was the first occasion on which Mr Kumar had appeared before the courts. Mr Horsley submitted Mr Kumar was therefore entitled to a discount of at least ten per cent to reflect his previous good character.

[10]      Secondly, Mr Horsley points out that Mr Kumar was subject to very restrictive bail conditions during the period before sentencing. Between May 2020 and 18 October 2021 Mr Kumar’s bail conditions required him to live away from his family so he would not come into contact with his neighbours whilst on bail. This meant he lived away from his wife and family for a period of approximately 16 months. Mr Horsley submits that this should also have been the subject of a discrete discount.

[11]      The Judge mentioned both these factors in his sentencing remarks. However, when he came to apply discounts for mitigating factors he only applied a discount of 25 per cent to reflect Mr Kumar’s guilty pleas. Mr Smith confirms on the Crown’s behalf that the Crown had acknowledged at sentencing that Mr Kumar was entitled to

a discount of 25 per cent for plea alone. It therefore appears that the Judge inadvertently overlooked the need to apply discrete discounts to reflect the other two mitigating factors on which Mr Kumar relied.

Decision

[12]      I agree with Mr Horsley that a discount of ten per cent, or around two and a half months, was available to reflect good character. I also consider a discount of around the same amount ought to have been given to reflect the fact that Mr Kumar was required to live away from home for such a lengthy period.

[13]      I consider the Judge would have applied a discount of around five months if he had turned his mind to these factors. This would have reduced the sentence to one of 15 months imprisonment. That in turn would have had the consequential effect of reducing the sentence of home detention to one of seven and a half months.

[14]      The pre-sentence report recommended a sentence of community detention. The Judge did not refer to this issue but plainly did not consider a sentence of anything less than home detention to be appropriate. Having regard to the nature and seriousness of the offending, and the end sentence the Judge reached, I consider the Judge was correct to put the possibility of a sentence of community detention to one side.

Result

[15]      The appeal against sentence is allowed. The sentence of ten months home detention is quashed. In its place I impose a sentence of seven and a half months home detention.

Lang J