Prakash v Police - [2023] NZHC 391

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-434

[2023] NZHC 391

BETWEEN
KRISHI PRAKASH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 February 2023

Counsel:

P Pati for Appellant

J Ah Koy for Respondent

Judgment:

3 March 2023

JUDGMENT OF HINTON J

This judgment was delivered by me on 3 March 2023 at 4.00 pm.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Meredith Connell, Auckland

PRAKASH v NEW ZEALAND POLICE [2023] NZHC 391 [3 March 2023]

[1] Mr Krishi Prakash was convicted and sentenced on one charge of driving with excess breath alcohol1 and one charge of careless driving2 by Judge A M Fitzgibbon at the Auckland District Court on 11 October 2022.3 The Judge declined to grant a discharge without conviction.

[2] Mr Prakash now appeals against his conviction and sentence on the grounds that a discharge without conviction should have been granted because his convictions are out of all proportionality to the gravity of his offences.

Background

[3] At around 1.00 am on 2 April 2021, Mr Prakash was driving down Oakdale Road, Mt Roskill. He failed to remain within his lane and lost control of his vehicle, crashing into several parked vehicles, causing significant damage. The impact of the initial collision was so great that it also caused the parked vehicles to move forward, leading them to hit even more vehicles. A wooden fence on the property of 17 Oakdale Road was also damaged as a result. The Police administered an evidential breath alcohol procedure at the scene on Mr Prakash, resulting in a reading of 911 micrograms of alcohol per litre of breath.

District Court decision

[4] Judge Fitzgibbon addressed Mr Prakash’s application for a discharge without conviction by considering the three-step test set out in the Court of Appeal’s decision in Z v R.4

[5] The Judge began by assessing the gravity of Mr Prakash’s offending. While the Judge found that his offences were “moderately serious”, especially given his blood alcohol level was more than twice the legal limit when tested after the crash, she ultimately concluded that the gravity of his offending was “on the low side for this kind of offending” considering that he had no prior criminal convictions.

1      Land Transport Act 1998, s 56(1).
2      Section 37(1).
3      New Zealand Police v Prakash [2022] NZDC 19924.
4      Z(CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142.

[6] The Judge then turned to consider the direct and indirect consequences of a conviction for Mr Prakash: the impact on his employment; on a marriage proposal (because of the limitations that a conviction might have on his ability to travel to Canada) and his immigration status in New Zealand. Dealing first with the impact on his employment, Judge Fitzgibbon noted that there was nothing in Mr Prakash’s affidavit in support to suggest that he was at risk of losing his job. Instead, there was only a concern that he might have difficulty gaining…

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 Prakash v Police

Details

AGLC: Prakash v Police [2023] NZHC 391
Case: [2023] NZHC 391
Decision Date: 3 March 2023

CaseChat Overview and Summary

In the case of Prakash v Police, Mr Krishi Prakash appealed against his conviction and sentence for driving with excess breath alcohol and careless driving, arguing that a discharge without conviction should have been granted as the consequences of his conviction were out of all proportion to the gravity of his offences. The appeal was dismissed by Hinton J, who found that the Judge's assessment of the consequences of a conviction was correct and not out of all proportion to the gravity of the offence.

The key issues in the appeal were whether the Judge erred in assessing the consequences for Mr Prakash's future employment and for the marriage proposal/ability to travel to Canada as not being out of all proportion to the gravity of his offending. The Court found that the consequences for Mr Prakash's future employment were not out of all proportion to the gravity of the offence, as he had maintained his employment and received an employee of the year award in spite of his conviction. The Court also found that the risk that Mr Prakash would not be able to migrate to Canada in a timely manner and accept the marriage proposal was not appreciable, as it was unknown whether the proposed fiancée would be able to migrate herself.

The Court held that a relevant consideration for a discharge without conviction is the importance of regulators and other public bodies charged with the oversight of particular industries to be fully informed of the backgrounds of those practicing within their purview. The Court also found that societal limitations and personal humiliation and distress are the natural consequences of many convictions, and the Court should not be in the business of aiding people in hiding convictions from their parents.

In conclusion, the appeal was dismissed, and the Judge's assessment of the consequences of a conviction was found to be correct and not out of all proportion to the gravity of the offence.

Orders