Neeraj v Police - [2019] NZHC 263

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-441-38

[2019] NZHC 263

NEERAJ

v

NEW ZEALAND POLICE

Hearing: 20 February 2019

Appearances:

J S Jefferson for Appellant

C C Gullidge for Respondent

Judgment:

26 February 2019

JUDGMENT OF CLARK J

Introduction

[1] When Mr Neeraj exited a petrol station on 10 September 2018 he checked for traffic coming from his right but did not see an 87 year old woman on the footpath, crossing the exit. His vehicle struck the woman who sustained resultant injury. Mr Neeraj was charged under s 38 of the Land Transport Act 1998 with operating a vehicle carelessly thereby causing injury.1

[2] Mr Neeraj applied for a discharge without conviction.2 In the District Court on 28 November 2018 Judge Mackintosh declined the application.3 Mr Neeraj

1      Maximum penalty three months imprisonment or a fine not exceeding $4,500 and mandatory disqualification from holding or obtaining a licence for six months.
2      Sentencing Act 2002, s 107.
3      New Zealand Police v Neeraj [2018] NZDC 24752.

NEERAJ v THE POLICE [2019] NZHC 263 [26 February 2019]

appeals that decision. He says the Judge erred in the application of the statutory test for a discharge without conviction and the consequences of a conviction are out of all proportion to the gravity of his offending.

Facts

[3] Mr Neeraj is a 21-year-old Indian National. He has been in New Zealand for three years, initially on a student visa. He attended Rotorua Lakes High School for two years and then Toi-Ohomai Institute of Technology where he obtained a New Zealand Certificate in baking (level 4). Thereafter, Mr Neeraj obtained employment with Pak’nSave. He worked there since April 2018 as a baker.

[4]On 10 September 2018 Mr Neeraj started work at 4 am. He finished at

12.30 pm. After work he picked up his niece from childcare and decided to stop at the Z service station on Kennedy Road to get something to eat. Having pulled into the service station he changed his mind about stopping and, he says, drove slowly across the forecourt.

[5] The police considered Mr Neeraj was effectively taking a shortcut although the Judge made no factual finding with regard to this point and it was not raised on appeal. Rather, the Judge accepted that when exiting the forecourt Mr Neeraj was checking to see if there was any traffic coming from his right and did not see the victim crossing the exit.4

[6] In his affidavit evidence for the District Court hearing Mr Neeraj described his shock at hitting the woman. He felt terrible for having done so. He could only imagine he was tired after a long shift and this affected his concentration.

Decision under appeal

[7] Judge Mackintosh observed the victim sustained quite serious injuries: a dislocated left finger, a fracture to her left ankle, a cut to her left thumb and a minor compression to the L1 section of her spine. As at September…

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 Neeraj v Police

Details

AGLC: Neeraj v Police [2019] NZHC 263
Case: [2019] NZHC 263
Decision Date: 26 February 2019

CaseChat Overview and Summary

The appellant, Mr Neeraj, was convicted in the District Court of operating a vehicle carelessly causing injury, contrary to s 38 of the Land Transport Act 1998. Mr Neeraj appeals that conviction, arguing the Judge erred in the application of the statutory test for a discharge without conviction and the consequences of a conviction are out of all proportion to the gravity of his offending. The appeal raises questions about the proper application of the test under s 107 of the Sentencing Act 2002 when considering a discharge without conviction.

The court considered whether the Judge applied the three-step process required by s 107 of the Sentencing Act 2002. The Judge did address the gravity of the offending and the potential consequences of conviction for Mr Neeraj. While the Judge did not go through the steps in a structured way, the court found that she was manifestly cognisant of the potential consequences of conviction for Mr Neeraj, namely the risk that when faced with Mr Neeraj’s second conviction within a period of approximately 12 months, INZ may view Mr Neeraj as an unsuitable candidate for a work visa. The Judge concluded that while there is some risk, the risk was not so great the discharge ought to be granted. The court agreed with the Judge’s assessment.

The appeal is dismissed.

Orders