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.  The total starting point therefore was four years’ imprisonment, but applying the totality principle he reduced  this  by  six  months  to  three  years  and  six  months’ imprisonment.    He considered that Mr Kumar was entitled to a 15 per cent discount for his guilty pleas and so he imposed an end sentence of three years’ imprisonment.  He also imposed various terms of disqualification which are not challenged.

[4]      Mr Mather in his submissions in support of the appeal focused on a starting point of two years’ imprisonment on the disqualified driving charges.  He pointed out that the maximum term of imprisonment available for a disqualified driving charge was two years’ imprisonment.  He submitted that this was the maximum and just too high.  He submitted that ultimately the end sentence should have been two and a half years’ imprisonment and not three years’ imprisonment.

[5]      Ms Cooper for the Crown supported the Judge’s approach in its entirety.

Discussion

[6]      It would usually be surprising to find a single offender charged with five serious driving offences and one attempting to defeat the course of justice charge over a period of less than a  year.    However,  when Mr Kumar’s past  record is

considered regrettably this level of offending over this relatively short period is not surprising at all.

[7]      Mr Kumar has a record of driving offending since 1997 which the Judge described as “staggering”.   That is a fair description.   The first blood alcohol conviction was in 1997 when Mr Kumar must have been approximately 25 years old. The formal record then shows regular convictions for driving with excess breath alcohol or blood alcohol or driving while disqualified, or other driving offending. Apart from a gap between 2001 and 2007 Mr Kumar appears to have offended on almost a yearly basis.

[8]      I turn now to the three sets of offending in issue.  In respect of the first set of offending,  on  11 August  2013  Mr Kumar was  stopped  while driving.    He was extremely aggressive to the Police when stopped.   He was taken to the Otahuhu Police Station but refused to co-operate with a breath test and refused to provide a blood specimen.  He has four convictions for offending in this manner.  He was a disqualified driver at the time having at that point 14 convictions for driving while disqualified.

[9]      The second set of offending on 27 September 2013 involved Mr Kumar again being stopped by the Police, this time at a checkpoint.   Breath testing procedures were carried out.  They showed 567 micrograms of alcohol per litre of breath.  It was then that Mr Kumar provided the false name and date of birth.  He entered a guilty plea and was convicted and sentenced to six months’ disqualification, albeit under the  wrong  name.    When  the  Police  spoke  to  the  real  person  of  that  name  the deception was discovered.

[10]     Mr Kumar was charged then with his fifth offence of driving with excess blood alcohol and his fifteenth offence of driving while disqualified.  It is also to be noted that the charge of providing false details was the third offence where he has misled the Police and attempted to defeat the course of justice, though the previous two led to charges of supplying a false name

[11]     The third set  of offending was  more  straightforward.    On 15  July 2014

Mr Kumar was observed driving while disqualified, his sixteenth such offence.

[12]     It can be seen therefore that the offending is in four different categories. First, driving while disqualified; second, driving with excess blood alcohol; third, refusing to supply a blood specimen; and fourth perverting the course of justice.

[13]     The Judge’s approach was to fix a starting point of two years’ imprisonment for the disqualified driving charges.   It was on this that Mr Mather had focussed submitting that the Judge had wrongly picked the maximum.  However, that is not how I interpret the Judge’s sentencing remarks.  He stated:

In my view, each of the disqualified driving charges together would attract a sentence of two years’ imprisonment.

[14]     By this  I take him to  mean that for the three driving while disqualified charges he fixes an overall starting point of two years’ imprisonment.  The notional cumulative maximum sentence for the three driving while disqualified charges was of course six years’ imprisonment.  The Judge has understandably put them together and imposed a sentence that is in effect a third of that maximum.

[15]     In my view the Judge’s approach was orthodox and appropriate.  It was an element of the driving while disqualified charge that it was the third or subsequent charge.    The  previous  history  is  therefore  an  element  of  the  culpability of  the offending.    Given  Mr  Kumar’s  record  a  stern  starting  point  was  appropriate. Mr Kumar was not being sentenced on one charge of disqualified driving but three.

[16]     Another  extraordinary  factor  was  that  the  second  and  third  disqualified driving charges followed the first and occurred while Mr Kumar was on bail with a hearing pending on those earlier counts.  It was a flagrant defiance of authority and of our driving laws, and in terms of assessing culpability for the act of driving while disqualified, it is of the most serious type.

[17]     Therefore, in my assessment the Judge’s reasoning and the starting point he

reached on these charges, cannot be criticised.

[18]     Turning to the one year he imposed in respect of refusing to provide a blood specimen  and  excess  breath  alcohol  combined,  again  this  starting point  seemed reasonable.   It can be notionally apportioned as six months for each.   Thus the sentences  on  each  are  a  quarter  of  the  maximum.    The  excess  blood  alcohol offending, involving as it did 567 micrograms per litre of blood, was not at the highest end of culpability in terms of blood level, but again the charge involved it being the third or subsequent charge of driving with excess blood alcohol. That, given his very extensive history of offending and the other acts of driving defiance, made Mr Kumar’s action in driving with excess blood alcohol particularly culpable. Similarly his history of defiance made the further act of defiance in refusing to provide a blood specimen all the more culpable.

[19]     Finally there was the uplift for wilfully attempting to defeat the course of justice charge.   Mr Kumar’s actions led to justice in fact being defeated, with the wrong person being convicted.  This was a serious instance in itself even putting to one side the earlier convictions on similar charges.  The starting point of a one-year uplift, given the seven year maximum, was entirely within the range.

[20]     Thus I can find nothing to criticise in the Judge’s assessment of the starting points.  I am unable to accept Mr Mather’s submission that he erred in setting the two year starting point for disqualified driving charges.

[21]     I would observe that there are other ways in which the sentencing exercise could have been approached, and if they had been adopted they are likely to have led to the same result.   For instance, lower starting points could have been fixed but there could have been an uplift for the very bad past record, and that uplift would have been inevitably significant.  The past record is an extreme aggravating factor. Thus, through that method the sentence would have uplifted to something equating the actual sentence.

Overall assessment

[22]     It is necessary to stand back and ask whether this sentence was manifestly excessive.  In my view it most clearly was not.  The totality allowance of six months was appropriate and even generous to Mr Kumar given that the theoretical maximum

if all the maximum terms were put together was 17 years’ imprisonment.  A small deduction for totality was all that could be warranted given the blatant and extreme nature of Mr Kumar’s defiance of New Zealand’s driving laws.   Deterrence, denunciation  and  in  particular  the  protection  of  the  community  all  require  a significant sentence of imprisonment.

[23]    I accept Mr Mather’s submission that while the history of offending is extraordinary  and  blatant,  there  is  no  particular  history  showing  careless  or dangerous driving on the part of Mr Kumar while he has been driving while disqualified or with excess breath or blood alcohol.  However, that does not mitigate the offending. Rather, if he had driven badly he would undoubtedly have faced additional charges and therefore been sentenced to a longer term of imprisonment.  It must be the case, given the fact that he still drives with excess blood alcohol, that Mr Kumar is a danger on our roads as recognised by the charges on which he has been convicted.  He constitutes a general danger to our community by his defiance of its laws.

[24]     So when those sentencing principles are taken into account the end sentence fixed by the Judge of three years’ imprisonment was within the range available.  I note that Mr Mather correctly has not criticised the 15 per cent discount for guilty plea  which  resulted  in  the  further  discount  of  six  months.    Given  Mr Kumar’s recidivism and the strength of the Crown case, and the fact that it was difficult to see how Mr Kumar could have defended any of the charges, that 15 per cent discount was within the range.

Result

[25]     The appeal is dismissed.

……………………………..

Asher J