Kumar v The Queen - [2015] NZHC 1034

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000012 [2015] NZHC 1034

BETWEEN
DHARMEND KUMAR

Appellant

AND

THE QUEEN Respondent

Hearing: 12 May 2015

Counsel:

J Mather for Appellant
K Cooper for Respondent

Judgment:

12 May 2015

JUDGMENT OF ASHER J

Solicitors/Counsel:
J Mather, Auckland.
Crown Law, Wellington.

KUMAR v THE QUEEN [2015] NZHC 1034 [12 May 2015]

Introduction

[1] Mr Kumar appeals against a sentence imposed upon him by Judge E P Paul on 28 November 2014. He had pleaded guilty to a total of six charges, which I
summarise as follows:

Offence:
Date:

Sentence:

Driving while disqualified (third or subsequent) under s 32(1)(a) and (4) of the Land Transport Act 1998

11 August 2013

Two years’ imprisonment (concurrent)

Refusing to provide a blood specimen when requested (third or subsequent) under s 60(1)(a) and (3) of the Land Transport Act.

11 August 2013

One year imprisonment (concurrent)

Driving with excess breath alcohol

567 mcg/L (third or subsequent) under s 56(1) and (4) of the Land Transport Act.

27 September 2013

One year imprisonment (concurrent)

Driving while disqualified (third or subsequent) under s 32(1)(a) and (4) of the Land Transport Act.

27 September 2013

Two years’ imprisonment (concurrent)

Wilfully attempting to defeat the course of justice under s 117(e) of the Crimes Act 1961.

27 September 2013

One year imprisonment (cumulative)

Driving while disqualified (third or subsequent) under s 32(1)(a) and (4) of the Land Transport Act.

15 July 2014

Two years’ imprisonment (concurrent)

On each of the charges of driving while disqualified and alcohol related offending Mr Kumar received a two year disqualification from driving.

[2] It can be seen from the dates that there were three lots of offending. The first on 11 August 2013 involved driving while disqualified and refusing to provide a blood specimen. The second on 27 September 2013 involved driving with excess blood alcohol and driving while disqualified and wilfully attempting to defeat the course of justice. The wilfully attempting to defeat the course of justice charge

arises from the fact that when arrested on the second occasion Mr Kumar gave a false name, and indeed was ultimately convicted and penalties were imposed under that false name. His use of the false name was only discovered at a later point when the person whose name was used became aware of Mr Kumar’s actions. The third occasion of offending was on 15 July 2014 and the charge there was driving while disqualified.

[3] Judge Paul in his sentencing notes of 28 November 2014 noted the three sets of offending and referred to his past record, to which I will refer shortly. He considered the pre-sentence report and the submissions. He considered that each of the disqualified driving charges together would attract a sentence of two years’ imprisonment. On top of that the excess blood alcohol and refusing to provide a sample warranted a further one year imprisonment. Finally the attempt to pervert the course of justice also warranted a one year term of imprisonment.…

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 The Queen

Details

AGLC: Kumar v The Queen [2015] NZHC 1034
Case: [2015] NZHC 1034
Decision Date: 12 May 2015

CaseChat Overview and Summary

The appeal in Kumar v The Queen was heard in the High Court of New Zealand, Auckland Registry. The appellant, Dharmend Kumar, challenged the sentence imposed by Judge E P Paul on 28 November 2014. Kumar had pleaded guilty to six charges: driving while disqualified, refusing to provide a blood specimen, driving with excess breath alcohol, and attempting to defeat the course of justice. The legal issues before the court were whether the starting point for the disqualified driving charges was correctly set and whether the total sentence was manifestly excessive.

The court found that Judge Paul's approach in setting a starting point of two years for the disqualified driving charges was appropriate, given Kumar's extensive history of driving offenses. The court also noted that the additional charges of driving with excess breath alcohol and refusing to provide a blood specimen warranted a one-year sentence, and the charge of attempting to defeat the course of justice warranted an additional one-year term. The court further reasoned that the total starting point of four years' imprisonment was appropriately reduced by six months to three years and six months, taking into account the totality principle. The court found nothing to criticise in the judge's assessment of the starting points, and concluded that the sentence was not manifestly excessive.

In conclusion, the appeal was dismissed. The court upheld the sentence imposed by Judge Paul, finding it to be within the appropriate range given Kumar's history of offending and the seriousness of the charges.

Orders