Prakash v Police
[2023] NZHC 391
•3 March 2023
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 employment in the future or being promoted in his current employment. Second, the Judge considered that there was no “direct impact” on Mr Prakash’s ability to travel to Canada to get married because the marriage proposal had not yet been accepted. Third, the Judge considered that whether or not the conviction affected Mr Prakash’s residency was a matter for the authorities and this was not a case where he would be disconnected from his family in New Zealand, his family being still in India.
[7] Finally, in light of the direct and indirect consequences identified, the Judge concluded that these consequences would not be out of all proportion to the gravity of the offending.
The appeal
[8] Mr Pati, for Mr Prakash, submits Judge Fitzgibbon erred in not finding the direct and indirect consequences of Mr Prakash’s conviction to be out of all proportion to his offending. Beginning with the gravity of Mr Prakash’s offending, Mr Pati emphasises Mr Prakash’s previously unblemished criminal record, his guilty plea, his acceptance of responsibility for the harm done, his remorse, his efforts to rehabilitate himself and his good character. Specifically, counsel submits that Mr Prakash has shown remorse and the taking of responsibility by apologising and paying reparations through his insurance company, through his attendance and completion of drink- driving, defensive driving and alcohol counselling programmes, all undertaken through his own initiative, and that his good character is reflected through both the character references provided to the Court and his receipt of an employee of the year award in 2022.
[9] Mr Pati submits that there are several direct and indirect consequences for Mr Prakash arising out of his conviction. First, he says Mr Prakash will have to disclose his conviction to the Director of Civil Aviation, which may affect his eligibility for renewal of his Regulated Air Cargo Agent (RACA) licence and therefore his current employment. Second, a conviction will hinder his ability to be promoted both generally by his current employer and specifically to the role of health and safety officer, with the indirect consequence of exacerbating his current financial problems and therefore the mental strain he feels. Third, Mr Prakash’s conviction will jeopardise his ability to accept a marriage proposal arranged by his parents and to migrate to Canada, that being his would-be fiancée’s plan. Fourth, a conviction may affect his immigration status and hinder his ability to travel overseas generally, particularly for work.
[10] Counsel contends that Judge Fitzgibbon erred especially in her assessment that an impaired ability to travel overseas was not a consequence for Mr Prakash because the need to travel had not yet “come to fruition”. Counsel submits instead that this should have been considered a consequence given there is a real and appreciable risk that this would occur. In light of this, Mr Pati submits that the real and appreciable risk that these consequences would result from a conviction are such that the consequences are out of all proportion to the gravity of the offending.
[11] In support of his appeal submissions, Mr Pati refers to five decisions, Maraj v Police,5 Police v Ping,6 Snellex v Police,7 Papuni v Police,8 and Waight v Police,9 all concerning applications for a discharge without conviction for similar drink-driving offending. Out of deference to his thorough submissions, I consider each of these.
[12] In Maraj v Police, the appellant pleaded guilty to excess blood alcohol and careless driving charges but sought a discharge on the basis that such a conviction would jeopardise his ability to study medicine internationally and that he would be unable to travel to Canada, where Mr Maraj’s parents had intended to settle. In respect
5 Maraj v Police [2016] NZCA 279.
6 Police v Ping [2020] NZDC 27049.
7 Snellex v Police [2017] NZHC 1792.
8 Papuni v Police [2013] NZHC 1958.
9 Waight v Police HC Auckland CRI-2006-404-465, 24 May 2007.
of the first alleged consequence, the Court of Appeal ultimately considered that there was no appreciable risk that his conviction would preclude him from studying medicine, that his conviction was relevant to his aspiration to practice as a doctor and that this information should be available for assessment by the proper institutions.10 As for the second, the Court considered that, despite the fact his conviction would affect him travelling to Canada (given he would likely need to wait at least five years to successfully apply),11 that this was only temporary and, while inconvenient, not out of all proportion to the gravity of his offending.12
[13] Mr Pati submits that Maraj is distinguishable given Mr Prakash’s marriage proposal may not survive a five-year waiting period and that, as Mr Prakash wants to start his life and family in Canada, the effects are significantly more disproportionate in his case.
[14] In Police v Ping, the defendant, an international student who had applied for a student visa, was driving the victim’s mother’s car when he lost control, swerved left and hit a barrier on the left side of the motorway. He had previously been drinking with the victim at a mutual friend’s birthday party. Judge Singh considered the overall offending to be “at the lower end of the moderate spectrum”, taking into account various mitigating factors.13 The Judge considered that if convicted, the defendant would be at real risk of being deported,14 given he was on an interim visa pending the disposition of the case. He was also at risk of being unable to enrol in a Chinese University,15 and to obtain a job either in New Zealand or in China.16 This led the Judge to conclude that the consequences of a conviction would be out of all proportion to the gravity of the offending.17
[15] Mr Pati submits that the same risks of being unable to find future employment and of having difficulty obtaining a passport also apply in Mr Prakash’s case.
10 Maraj v Police, above n 5, at [36].
11 At [35].
12 At [36].
13 Police v Ping, above n 6, at [16].
14 At [31]–[33].
15 At [25].
16 At [26].
17 At [47].
[16] In Snellex v Police, the appellant, a young helicopter pilot, pleaded guilty to driving with excess breath alcohol. His conviction arose after his vehicle was observed to be swerving within its lane, and after his breath alcohol was found to contain 652 micrograms of alcohol per litre. Muir J considered the offending to be out of character for the appellant,18 and, in light of his remorse and efforts at rehabilitation, his offending was moderately serious.19 The appellant argued that the real consequence of a conviction for him was on his ability to obtain and retain employment, evidenced in the loss of his job as an instructor pilot. He could not advance his career in the aviation industry, without which he would be left unable to service his substantial student debt. Muir J found that the evidence submitted by the appellant as to why he lost his employment did not sufficiently explain that he lost his employment due to his conviction and did not suggest that future employment would be “impossible”.20 Muir J found, noting the importance of the aviation industry being fully informed of an applicant’s history,21 that the consequences were not out of all proportion to the gravity of his offending.
[17] Mr Pati seeks to distinguish this case in three ways. The first is on the basis that the offending of the appellant in Snellex was assessed as “moderately serious”, whereas Mr Prakash was assessed as being at the lower end. Second, he says unlike the appellant, Mr Prakash’s driving was not evidently dangerous to the public. Third, he submits that the same interests that warranted the appellant’s industry regulators being made aware of his conviction are not engaged in Mr Prakash’s case particularly because his career does not involve matters of life or death.
[18] In Waight v Police, the appellant, a newly qualified police officer, was stopped at a police checkpoint where he subsequently tested in excess of the legal limit for breath alcohol. He had been at a farewell function where he drank six cans of Woodstock. Conscious of his drinking and the law, he administered two breath alcohol tests of his own which, due to being wrongly assembled, gave incorrect readings that he was under the legal limit. Winkelmann J found the level of alcohol (732 micrograms) to be high, but noted that there was nothing irregular in the appellant’s
18 Snellex v Police, above n 7, at [33].
19 At [34].
20 At [50].
21 At [70].
driving, that it was his first offence and he took steps to try to ensure he was not over the legal limit.22 The Judge also found that there was a likelihood a conviction would result in an 18 month stand down were he to be successful in his employment application with the navy, that he had already lost his career with the police (and so relevant public safety considerations had already been met) and that he had suffered sufficient consequences that the Court could be satisfied he was deterred from offending again.23 In light of this, Winkelmann J concluded that the consequences were out of all proportion to the seriousness of the offence. Mr Pati submits the same considerations as to employment prospects apply in Mr Prakash’s case, and public safety concerns are alleviated by the appellant’s disqualification.
[19] In Papuni v Police, the appellant was pulled over due to the manner of his driving. He was over the legal limit by 22 milligrams, had no previous convictions and pleaded guilty to his offending. His drink-driving arose after having a drink to relax at the end of his shift to avoid a disagreement with two co-workers. Typically, Mr Papuni would have been given a meal by his employer but on this occasion he had not eaten. Duffy J assessed the appellant’s consequences of a conviction to be a special risk of losing his job due to the likely requirements from either a franchisor company or the Ministry of Social Development that all franchise employees had to be conviction-free.24 She said there was also a risk of not being able to travel to countries to which the appellant had previously travelled and to which he would likely need still to travel because of his competitive dancing. Duffy J concluded that the appellant’s offending was out of character for him,25 that he had simply made a serious error in judgment and that his dancing career and employment would be at serious risk of ending if the conviction remained in place.26 Mr Pati submits that Mr Prakash’s offending should be similarly regarded as out of character, and that Duffy J’s conclusions on the restrictions of travel are applicable to Mr Prakash’s case.
[20] For the Crown, Ms Ah Koy submits that the consequences of a conviction on Mr Prakash’s employment and ability to travel (and the follow-on consequences) were
22 Waight v Police, above n 9, at [34]-[35].
23 At [36]–[37].
24 Papuni v Police, above n 8, at [32].
25 At [37].
26 At [33].
correctly assessed by Judge Fitzgibbon and were not out of all proportion to the gravity of the offending. First, in relation to Mr Prakash’s employment, Ms Ah Koy submits there was no evidence to suggest there was a real and appreciable risk that he would lose his RACA licence, and that any such consequences had to give way to the Director of Civil Aviation’s right to know the full background of those working within the aviation industry. Further, Mr Prakash does not appear to have suffered any consequences given the support of his employer and his recent employee of the year award, which it seems was given to him after he was convicted and sentenced. Second, in relation to Mr Prakash’s ability to travel, Ms Ah Koy submits that inability to travel to Canada is speculative. There is no evidence as to the status of his would-be fiancée’s application to migrate to Canada and whether it would even be accepted. There is also no evidence that he will be precluded from travelling to Canada, and he has not provided any evidence of his need to travel for work.
[21] Ms Ah Koy similarly notes that the Court should not engage in any speculation over the effect of Mr Prakash’s conviction on his immigration status, given that immigration authorities enjoy access to and possess expertise generally not available to the Courts.
[22] In response to the five decisions referred to by Mr Pati, Ms Ah Koy submits that while similar cases may provide guidance, all cases ultimately turn on their own facts. She concludes by submitting that the consequences for Mr Prakash are, far from being disproportionate to his offending, predictable and unexceptional.
Law
[23] Section 106 of the Sentencing Act 2002 gives the Court discretion to discharge an offender without a conviction. However, such discretion is exercised pursuant to s 107, which provides:
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.
[24] An appeal against a refusal to grant a discharge without conviction is an appeal against both a conviction and sentence.27 Such appeals must be allowed if the appellate judge concludes that a “miscarriage of justice” has occurred,28 either because the sentencing Judge made a material error in entering the conviction or because they erred in applying the principles for discharging a conviction under s 107.29 Accordingly, the appellate Court must make its own assessment of the application’s merits.30
[25] In determining whether a discharge without conviction could have been granted, the Court must consider: (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.31 In assessing the gravity of the offence, the Court must take into account the aggravating and mitigating features of both the offending and the offender.32 The Court must also be satisfied that there is a “real and appreciable” risk that any given consequence of a conviction will happen.33
Discussion
[26] While Mr Pati made submissions that related to gravity of offending, those factors are not relevant here. The Judge has already taken those into account in her finding that gravity was on the low side for this category of offence. That finding was as generous to Mr Prakash as possible.
[27] Mr Pati did not pursue orally any argument as to effect on Mr Prakash’s immigration status or on his ability to travel for work. There is no or clearly insufficient evidence on those points.
[28] The key questions in this appeal are whether Judge Fitzgibbon erred in assessing the consequences for Mr Prakash’s future employment and for the marriage
27 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]-[8].
28 Criminal Procedure Act 2011, s 232(2)(b) or (c).
29 Gaunt v Police [2017] NZCA 590 at [9]; and Jackson, above n 27, at [12].
30 Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141
31 Z (CA447/2012), above n 4, at [26]-[28].
32 At [27].
33 R v Taulapapa [2018] NZCA 414 at [22].
proposal/ability to travel to Canada, as not being out of all proportion to the gravity of his offending.
Employment Consequences
[29] While Mr Pati relies on Ping, Waight and Papuni, the facts are materially different here. Not only has Mr Prakash maintained his employment, he has succeeded in his employment to his credit in spite of his conviction, as his recent employee of the year award demonstrates. Waight is easily distinguishable because the appellant was able to demonstrate the real downside a conviction would have on his employment. He had already lost his job as a police officer and would be very likely to be stood down for a period of a year and a half in his new position, both significant consequences. Unlike in Papuni, Mr Prakash has not put forward independent evidence to demonstrate that his licence will not be renewed. It is also not clear that such a licence is a pivotal part of his work.
[30] Further, Courts are very reluctant to place regulators in a position where they are unaware of the very matter they seek to regulate, as illustrated by Snellex. The Court of Appeal in Maraj endorsed the reasoning of Wylie J in Roberts v Police:34
I can well accept that if a conviction is going to result in an absolute bar to the offender gaining entry to some profession or career then it may well be appropriate to ameliorate that consequence in an appropriate case by declining to enter a conviction. Where, however, Parliament has seen fit to establish statutory authority with the task of selecting or screening applicants for admission to whatever trade or profession may be involved then clearly Parliament has contemplated that those bodies should exercise a discretion as to admission in the light of the expertise that those bodies will build up over a period of time and with the knowledge of the kind of qualities that are appropriate for the particular trade or profession and those which render admission to that trade or profession inappropriate. It seems to me, and in this respect I think I echo what Holland J has said, that it would be inappropriate, at any rate in all but the most exceptional case, for this Court to substitute its discretion as to what may or may not be relevant on the seeking of admission to a particular profession for the discretion which Parliament has seen fit to vest in a statutory body. Indeed it is not perhaps going too far to say that to do so the Court would be actively concealing from the statutory body information which ought properly to come before that body.
34 Roberts v Police (1989) 5 CRNZ 34 (HC) at 36, endorsed in Maraj v Police, above n 5, at [28].
[31] As the above decisions emphasise, 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. This consideration is directly applicable to Mr Prakash because, as Mr Pati submits, his conviction will have to be disclosed to the Director of Civil Aviation in applying for the renewal of his RACA licence. Furthermore, even if it would be difficult for Mr Prakash to renew his RACA licence, Muir J’s decision in Snellex reinforces that having difficulty in practising in a chosen regulated profession is insufficient by itself to demonstrate that the adverse consequences on employment will outweigh the gravity of the offending. It would be a rare case where that would be so and this is not that case.
Travel Consequences
[32] As to travel/migration to Canada, Mr Pati clarified under questioning that the parents of Mr Prakash have made the marriage proposal, not knowing of Mr Prakash’s conviction and the consequential migration difficulties for him. The proposed bride wishes to emigrate from India (where she still lives) to Canada, not to New Zealand. Mr Prakash has not told his parents because it would affect his otherwise high standing in the family.
[33] I accept there is a risk that Mr Prakash would not be able to migrate to Canada in a timely manner and that, as a consequence, he would not be able to accept the marriage proposal and his parents would be deeply upset. I am not satisfied that risk is appreciable because it is unknown whether the proposed fiancée would be able to migrate herself. In any event, that situation has arisen not as a consequence of the conviction but of Mr Prakash not telling his parents about it. As Mr Pati accepted, the marriage proposal could have been, not with someone wishing to emigrate from India to Canada, but rather with someone prepared to come to New Zealand or living in New Zealand. While I accept that the societal impact on Mr Prakash’s parents and on Mr Prakash himself of the breath alcohol conviction might be greater than on many other families, I do not consider that such a consequence would be totally disproportionate to the gravity of the offence, or that the Court should be in the business of aiding people in hiding convictions from their parents. It would create a
dangerous precedent. Societal limitations and personal humiliation and distress are the natural consequences of many convictions.
[34] Finally, I note that the two arguments raised by the appellant conflict with each other. One focuses on Mr Prakash’s future employment prospects in New Zealand and the other on his inability to make immediate plans to migrate to Canada.
[35] I find that the Judge was correct to conclude that the consequences of a conviction for Mr Prakash are not totally disproportionate to the gravity of the offence.
Order
[36]The appeal is dismissed.
Hinton J
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