Manikpersadh v The Queen - [2011] NZCA 28

IN THE COURT OF APPEAL OF NEW ZEALAND

CA691/2010
[2011] NZCA 28

BETWEEN ASHVEER MANIKPERSADH
Appellant

AND THE QUEEN
Respondent

Hearing: 14 February 2011

Court: Stevens, Potter and Miller JJ

Counsel: E Orlov and S Malaviya for Applicant
M D Downs for Respondent

Judgment: 23 February 2011 at 11.30 am

JUDGMENT OF THE COURT

The application for special leave to appeal is granted on the following question of law:

Whether at [55] of the judgment on appeal (Manikpersadh v New Zealand Police HC Auckland CRI-2010-404-252, 28 September 2010) the High Court Judge correctly identified and applied the test on which an appellate Court will intervene in a sentencing judge’s decision to impose a sentence of imprisonment as opposed to home detention.

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REASONS OF THE COURT

(Given by Potter J)

Mr Manikpersadh seeks special leave under s 144(3) of the Summary Proceedings Act 1957 to appeal his sentence of four months imprisonment on two charges of causing injury while driving with excess blood alcohol under s 61(1)(b) of the Land Transport Act 1998. The Crown opposes leave.
The applicant, a 19-year-old student at the time, crashed into another car while driving through a red light at the intersection of Symonds Street and Wakefield Street in Auckland in the early hours of 28 February 2010. He had been drinking and his blood-alcohol level was 223 milligrams of alcohol per 100 millilitres of blood. (The legal limit for a person under 20 years of age is 30 milligrams per 100 millilitres.) Both occupants of the car he struck received serious injuries and are suffering ongoing physical and financial loss. Their vehicle was written off.
The applicant, a first offender, entered early guilty pleas to the charges. He was sentenced in the District Court at Auckland on 30 June 2010 to six months imprisonment and disqualified from holding or obtaining a motor driver’s licence for one year.[1]
[1]New Zealand Police v Manikpersadh DC Auckland CRI-2010-004-6225, 30 June 2010.
On appeal to the High Court the sentence was reduced to four months imprisonment.[2]
[2]Manikpersadh v New Zealand Police HC Auckland CRI-2010-404-252, 28 September 2010.
An application to the High Court for leave to appeal that judgment to this Court was declined.[3]
[3]Manikpersadh v New Zealand Police HC Auckland CRI-2010-404-252, 8 October 2010.
On an application for special leave, a question of law must be identified which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.[4]
[4]R v Slater [1997] 1 NZLR 211 (CA); Clifford v Commissioner of Inland Revenue (No 2) [1963] NZLR 897 (CA); Autocrat Sanyo Ltd v Collector of Customs [1985] 2 NZLR 707 (HC and CA).
None of the questions of law sought to be advanced by counsel for the applicant, as summarised by Brewer J in the leave decision in the High Court,[5] have any merit.
[5]These questions, including misguided reliance on s 9 of the New Zealand Bill of…

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 Manikpersadh v The Queen

Details

AGLC: Manikpersadh v The Queen [2011] NZCA 28
Case: [2011] NZCA 28
Decision Date: 23 February 2011

CaseChat Overview and Summary

Manikpersadh appealed his four-month imprisonment sentence for driving under the influence and causing injury, seeking special leave to argue that the High Court erred in its assessment of the sentencing judge's decision. The Court of Appeal granted special leave to appeal on the specific issue of whether the High Court correctly applied the legal test for determining when an appellate court should intervene in a sentencing judge's decision to impose imprisonment over home detention. The applicant argued that the High Court's conclusion at [55] of its judgment contained an error of law by suggesting that the choice between imprisonment and home detention was purely a matter of judicial discretion without proper consideration of the applicable legal test. The Crown acknowledged that the High Court's conclusion might indeed contain an error of law.

The legal issue before the Court was whether the High Court accurately identified and applied the appropriate legal principles for appellate intervention in sentencing decisions that involve a choice between imprisonment and home detention. This issue is of significant public importance as it relates to the proper exercise of judicial discretion in sentencing and the potential for appellate review in such cases. The Court recognised that clarifying this legal principle is essential to ensure consistent and legally sound sentencing practices.

The Court of Appeal concluded that the identified issue was indeed a question of law of general and public importance. The Court granted special leave to the applicant to argue this question on appeal, noting that a second appeal in a sentencing matter is rare but warranted in this case due to the potential error of law in the High Court's judgment. The Court emphasised the importance of ensuring reparation payments to the victims, noting the assurances provided by the applicant's solicitors regarding the payment of reparation upon confirmation of the amount due. The applicant remained on bail pending the outcome of the appeal.

Orders