Patel v Police
[2025] NZHC 1424
•3 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-154
[2025] NZHC 1424
BETWEEN ISHAN BASHIR AHMED PATEL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 20 May 2025 Appearances:
P Hamlin and D LeGallais for the appellant A Chan for the respondent
Judgment:
3 June 2025
JUDGMENT OF BLANCHARD J
[Appeal against conviction and sentence]
This judgment was delivered by me on 3 June 2025 at 1.00 pm Registrar/Deputy Registrar
Solicitors:
Phil Hamlin Barrister, Auckland Kayes Fletcher Walker Ltd, Manukau
PATEL v NEW ZEALAND POLICE [2025] NZHC 1424 [3 June 2025]
[1] Mr Patel seeks to appeal against a decision of Judge G A Andrée Wiltens in the District Court at Manukau dated 3 February 2025.1 The decision dismisses Mr Patel’s appeal of a decision by Community Magistrate F Thomas dated 18 July 2024 declining to grant an application for discharge without conviction pursuant to s 106 of the Sentencing Act 2002.2 The application related to a charge of dangerous driving,3 to which Mr Patel had pleaded guilty. Mr Patel needs leave to appeal because he filed his notice of appeal out of time and this is a second appeal.
[2] Mr Patel is 19 years’ old. He is studying for conjoint Bachelor of Commerce and Bachelor of Laws degree. He has no previous convictions.
The offending
[3] At around 6.50 pm on 10 March 2024, Mr Patel was observed by the Police Eagle helicopter driving at high speeds on State Highway 20 heading southbound. The speed limit on State Highway 20 is 100 kilometres per hour. He was travelling between 130 and 190 kilometres per hour, weaving in and out of traffic.
[4] Mr Patel exited State Highway 20 using the Puhinui Road exit and drove in the direction of Clendon Park using Roscommon Road. The speed limit on Roscommon Road and surrounding areas is 50 kilometres per hour. Mr Patel continued to drive at high speeds up to 150 kilometres per hour, performing multiple dangerous overtaking manoeuvres, narrowly avoiding other vehicles on more than one occasion.
[5] There were a significant number of members of the public driving on both State Highway 20 and in the Clendon Park area at the time.
1 New Zealand Police v Patel [2025] NZDC 1931.
2 New Zealand Police v Patel DC Manukau CRI-2024-092-2124, 18 July 2024.
3 Land Transport Act 1998, 35(1)(b). Maximum penalty three months’ imprisonment or a fine not exceeding $4,500, and the court must order the person to be disqualified from holding or obtaining a driver licence for six months or more.
Community Magistrate’s decision
[6] The Community Magistrate considered the offending to be at least moderately serious. It put others on the road at risk.4
[7] However, the Community Magistrate noted Mr Patel had passed his full licence, completed a defensive driving course and had written an apology. He had completed voluntary work and made donations to charities.5 The Community Magistrate noted a psychologist’s report recorded the anxiety and depression Mr Patel was suffering from postdated the offending and was accordingly not a mitigating factor relating to the offending. However, having regard to these factors, the Community Magistrate considered the gravity of the offending was reduced to below moderately serious offending.6
[8] The Community Magistrate considered the consequences of a conviction to be at a relatively low level.7 Mr Patel appeared to be in a good position financially. By the time he completed his conjoint degree, he would be a couple of years away from the Criminal Records (Clean Slate) Act 2004 concealing any conviction. The Community Magistrate considered Mr Patel’s depression and anxiety was a consequence of the offending and not the conviction.8 It was not clear if a conviction would interfere with any plans to travel to India and China.9
[9] Because the gravity of the offending was below moderately serious and the consequences of a conviction were relatively low, the Community Magistrate concluded that the s 107 test was not satisfied. She declined the application for discharge without conviction and disqualified Mr Patel from driving for six months.10
4 New Zealand Police v Patel, above n 2, at [6].
5 At [6].
6 At [7].
7 At [10].
8 At [8].
9 At [9].
10 At [10].
District Court decision
[10] On appeal, Mr Patel argued the Community Magistrate did not take full account of the consequences of a conviction.11
[11] The Judge first considered the seriousness of the offending. He considered the seriousness to be “grave”. This was because of the obvious risk to public safety of driving at such high speeds and participating in multiple dangerous overtaking manoeuvres, narrowly avoiding other vehicles.12
[12] The Judge then considered the consequences of a conviction being entered. Mr Patel argued that a conviction would prevent him from gaining admission as a lawyer or accountant and from obtaining work in law or accounting. But the Judge considered this to be speculative. As the Community Magistrate concluded, the conviction would be expunged from Mr Patel’s record due to the passing of time (under the Criminal Records (Clean Slate) Act ).13 The Judge had no doubt that having the conviction would not prevent him from being able to gain admission as lawyer or accountant. Further, he said it is impossible to tell whether the conviction would give other candidates looking for work an advantage over him. The Judge said that a driving offence may well make very little, if any, difference to Mr Patel’s employment prospects.14
[13] The Judge also considered it would be speculative to suggest that a conviction would limit Mr Patel’s ability to travel to India and China, which he would need to do to work in his family’s business. The Judge said that both India and China may well not permit Mr Patel to travel, but equally, they might allow him to. He said that those countries ought to be able to make the decision to admit Mr Patel with full knowledge of what he had done.15
[14] The Judge concluded by saying that what concerned him was the very serious nature of the offending. He said that he could not get past that. The offending was
11 New Zealand Police v Patel, above n 1, at [2].
12 At [6].
13 At [9].
14 At [10].
15 At [11].
too serious. Therefore, the Judge concluded that he would not exercise his discretion to grant the application for discharge.16 The Judge dismissed the appeal.17
The appeal
[15] Mr Hamlin for Mr Patel argues that the Judge wrongly assessed the seriousness of the offending. He argues that, in the circumstances, the gravity of the offending can be regarded as low. He also argues that the Judge erred in not having regard to the immediate effect a conviction would have on Mr Patel’s income, his studies and his mental health. On this basis, he argues that the consequences of a conviction would be out of all proportion to the gravity of the offending.
Leave to appeal
[16] As I have said, Mr Patel needs leave to appeal on two accounts.18 First, he filed his notice of appeal out of time. The appeal was delayed due to unavailability of counsel. The Police do not oppose leave to appeal out of time. I grant leave to do so.
[17] Second, Mr Patel needs leave because this is a second appeal. The Police oppose leave being granted for a second appeal. The Court must not give leave for a second appeal unless satisfied that the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.19
[18] Mr Patel advances his application for leave on the basis that a miscarriage of justice may have occurred or may occur unless the appeal is heard. For the reasons given below, I do not think that the grant of an application for discharge without conviction was appropriate in this case. It follows that no miscarriage of justice may have occurred or may occur. I therefore decline leave to bring a second appeal.
16 At [12]–[13].
17 At [14].
18 Criminal Procedure Act 2011, s 225(3).
19 Sections 237 and 253.
Appeal principles
[19] An appeal against a refusal to discharge a defendant without conviction is brought on the basis that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction, or, alternatively, a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles found in s 107 of the Sentencing Act.20
[20] The threshold test in s 107 is a matter of fact requiring judicial assessment which can be subject to appeal on normal appellate principles.21
Discharge without conviction
[21] Under s 107 of the Sentencing Act, the Court must not discharge an offender without conviction unless the Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. It requires consideration of three factors:22
(a)the gravity of the offence;
(b)the direct and indirect consequences of a conviction; and
(c)whether those consequences are out of all proportion to the gravity of the offence.
[22] When considering the gravity of the offence, the Court should consider all aggravating and mitigating factors relating to the offending and the offender.23
[23] The Court must then identify the direct and indirect consequences of a conviction for the offender and consider whether those consequences are “out of all proportion” to the gravity of the offence.24
20 Section 232(2)(b) or (c); and Gaunt v Police [2017] NZCA 590 at [9].
21 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
22 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8].
23 At [27].
24 At [27].
[24] If the Court determines that the consequences are out of all proportion to the gravity of the offence, it must consider whether it should exercise its residual discretion to grant a discharge. However, it will be a rare case where a court will refuse to grant a discharge in such circumstances.25
The position of the Police before the Community Magistrate
[25] In the discussions with Mr Patel after he pleaded guilty, the Police indicated that they would not oppose an application for a discharge without conviction on the condition that Mr Patel obtained his full licence, completed a defensive driving course and provided a letter of apology. Mr Patel took all these steps. Accordingly, the Police did not oppose the application before the Community Magistrate. Despite this, the Community Magistrate concluded that Mr Patel’s application should not be granted.26
[26] Mr Hamlin placed particular emphasis on this in the hearing before me. In particular, he submits that a miscarriage of justice has occurred because the District Court Judge either did not know or overlooked that the Police had advised Mr Patel that they would not oppose the application if he undertook the specified actions.
[27] Ms Chan for the Police confirms that Mr Hamlin accurately describes the position taken by the Police before the Community Magistrate. The Police did not oppose Mr Patel’s application before the Community Magistrate. But Ms Chan submits that, as the Community Magistrate had declined the application and determined that it was not appropriate for Mr Patel to receive a discharge without conviction, it was right for the Police to oppose Mr Patel’s appeal to the District Court and, similarly, for them to oppose his second appeal to the High Court. I accept this submission.
Gravity of the offending
[28] Mr Hamlin submits that dangerous driving is, in general, an offence that is moderately serious. But he argues that, when the offending is seen in light of the
25 At [27].
26 New Zealand Police v Hamlin, above n 2, at [5]–[10].
circumstances of the offending, Mr Patel’s age, his post-offending conduct, and his previous good character, the gravity of the offending can be regarded as low.
[29]Mr Hamlin submits that the offending itself had the following features:
(a)The nature of the dangerous driving was not that of a “joyride”. Mr Patel was selling his vehicle. He had arranged to meet with a prospective purchaser. Mr Patel was simply seeking to get the vehicle to the prospective purchaser quickly.
(b)Mr Patel observed all traffic lights and made his way through roundabouts safely.
(c)There was no damage to vehicles or harm to victims as a result of the driving.
[30] Mr Hamlin also submits that the following factors reduce the gravity of the offending to low:
(a)Mr Patel was 18 years’ old;
(b)he pleaded guilty at an early stage;
(c)he has not previously appeared before the Courts;
(d)despite the fact that he was representing himself (he did so until he appealed to the District Court), he engaged in discussions with the Police and took the decision to take responsibility for his actions from the outset;
(e)he has expressed considerable remorse both in his affidavit and in a letter to the Police;
(f)as instructed by the Police, he obtained his full licence and completed a defensive driving course;
(g)he has voluntarily completed over 60 hours of community work; and
(h)he has voluntarily made charitable donations totalling $1,152.
[31] Ms Chan takes issue with Mr Hamlin’s characterisation of the gravity of the offending. She submits that the conduct was inherently serious offending. She submits that Mr Patel’s conduct post the offending was taken into account in the end sentence that he received. But it does not significantly reduce the inherent seriousness of the offending.
[32] I agree with Ms Chan. The extremely high speeds that Mr Patel drove at and the dangerous manoeuvres he engaged in mean that the offending must be considered serious. He could have killed himself or members of the public.
Consequences of conviction
[33] As discussed above, the focus of Mr Patel’s argument before the District Court was on the effect that a conviction may have on his ability to gain admission as a lawyer or accountant, to obtain employment in those professions, and to travel to India and China to work in his family’s business. But Mr Hamlin, who did not represent Mr Patel in the District Court, has a different focus.
[34] Mr Hamlin acknowledges that the Criminal Records (Clean Slate) Act means that, provided Mr Patel is not subject to further convictions, his conviction would be “wiped clean” in seven years. He also acknowledges that the Judge was correct that the conviction would not prevent Mr Patel from being able to practice in law or accounting. Further, there is no evidence that a driving offence would prevent Mr Patel from being able to enter India or China.
[35] This being the case, Mr Hamlin focuses on what he describes as three immediate consequences of a conviction:
(a)the immediate loss of income due to Mr Patel losing his licence, prohibiting him from continuing to work as an Uber Eats driver to
support himself in the context of a single parent household, while he is studying for two degrees;
(b)the immediate negative impact on Mr Patel’s studies due to the stress of a conviction on his declining mental health; and
(c)the risk of a continued decline of Mr Patel’s mental health and well- being.
[36] I do not regard the loss of Uber Eats income as a significant factor. As Ms Chan submits, Mr Patel’s affidavit suggests that any income he received from working as an Uber Eats driver was not essential to him or his family financially.
[37] Mr Patel’s affidavit provides evidence regarding his mental health. I do not wish to minimise these concerns. But again, as Ms Chan submits, Mr Patel’s mental health concerns are not consequences of his conviction. The discussion of his mental health in his affidavit begins as follows: “As a result of my wrongdoing and the Court process, my mental health has been affected.” This confirms that Mr Patel’s mental health concerns are linked to his offending, and his ongoing involvement in court proceedings, rather than to his conviction. Even if he was discharged without conviction, the fact of him having offended would of course remain. He would still need to confront and deal with the fact of his wrongdoing. Further, the disposal of his appeal will bring the court process to an end.
Conclusion
[38] For these reasons, I do not think that a discharge without conviction is justified in his case. Had Mr Patel been entitled to appeal as of right, I would have dismissed his appeal.
[39] Accordingly, no miscarriage of justice may have occurred or may occur. As he needs leave to bring a second appeal, I decline his application to do so.
Result
[40]Mr Patel’s application for leave to bring a second appeal is declined.
Blanchard J
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