Shetty v Police - [2020] NZHC 438

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2020-425-000001

[2020] NZHC 438

BETWEEN
SAHIL SUDHIR SHETTY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 March 2020

Appearances:

B Shackell for Appellant

S N McKenzie for Respondent

Judgment:

9 March 2020

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 9 March 2020 at 12.30 pm

Registrar/Deputy Registrar

Date:

SHETTY v POLICE [2020] NZHC 438 [9 March 2020]

Introduction

[1] Mr Shetty pleaded guilty to a charge of careless driving causing injury while under the influence of drink (under s 62(1) Land Transport Act 1998).1

[2] Mr Shetty was sentenced by Judge Farnan to 16 months’ imprisonment. He was disqualified from driving for four years. The Judge ordered reparation of $500 on account of the emotional harm suffered by the victim, which her Honour described as a “token amount”.

[3] Mr Shetty appeals the sentence of imprisonment on the ground that it is manifestly excessive. He submits the Judge erred in adopting a starting point that was too high and in declining to impose home detention with community work.

Facts

The crash

[4] On 12 March 2019 Mr Shetty and his partner (the victim) were visiting bars in the Queenstown CBD where Mr Shetty consumed alcohol. At about 3.43 am on 13 March Mr Shetty, the victim and one other person walked to their vehicle. The vehicle was seen being driven east along Shotover Street and then on Robins Road, heading away from town.

[5] At 10.20 am (more than eight hours later) an employee at Gorge Road Retail Centre, Queenstown found the vehicle, extensively damaged and on its side, wedged between a building and a grass bank off the road. Emergency services were called. The crash-site is approximately one kilometre from where the vehicle was last sighted.

The victim’s injuries

[6] The victim was on the ground 1.5 m from the car on the passenger side. She was moving her limbs but unable to communicate. She was taken to hospital in critical condition.

1 Police v Shetty [2019] NZDC 24997.

[7] The victim has extensive, long-lasting injuries. She sustained a left-side skull fracture, bleeding beneath the skull, damage to her right side of the brain, brain swelling and damage to the left lung. The victim was placed in an induced coma. She underwent emergency surgery. She spent 26 days in the Intensive Care Unit until she regained respiratory functions. The victim did not regain meaningful speech for over one month. She requires extensive neurorehabilitation. The victim subsequently returned to Germany, her home country, where she remained hospitalised for a period.

[8] I note from the victim impact statement of the victim’s mother that in August 2019 (five months after the crash) the victim was still suffering short-term memory issues, had no feeling in two fingers in one hand, and still had a broken collar bone and torn ligaments which were deemed inoperable.

The crash investigation

[9] The crashed vehicle…

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 Shetty v Police

Details

AGLC: Shetty v Police [2020] NZHC 438
Case: [2020] NZHC 438
Decision Date: 9 March 2020

CaseChat Overview and Summary

Sahil Sudhir Shetty appeals against his sentence of imprisonment for careless driving causing injury while under the influence of drink. The High Court of New Zealand considers the appeal and assesses whether the District Court erred in its approach to the sentence. The appeal focuses on the starting point for the sentence, the refusal to impose home detention, and the level of reparation ordered. The High Court finds that the sentence of 16 months' imprisonment is within an acceptable range and that the refusal of home detention was not an error. The appeal is dismissed.

The High Court begins by examining the starting point of two years and six months’ imprisonment, which was adopted by the District Court. Shetty's counsel submits that this starting point was too high and that the District Court erred in placing undue weight on aggravating factors. The High Court finds that the starting point was within an acceptable range, considering the severity of the victim's injuries, the failure of Shetty to make enquiries or report the incident, and Shetty's decision to drive while under the influence of alcohol. The High Court also addresses Shetty's offer of remorse and restorative justice, finding that the District Court appropriately assessed these factors in its sentencing decision.

The High Court then considers the District Court's refusal to impose home detention. Shetty's counsel argues that the District Court erred in placing undue weight on the principles of deterrence and denunciation. The High Court finds that the District Court did not err in its approach and that the refusal of home detention was justified, based on Shetty's failure to fully comprehend the gravity of his offending and the need to protect the community.

Finally, the High Court considers the level of reparation ordered. Shetty's counsel submits that the District Court erred in its approach to the emotional harm payment. The High Court finds that the District Court was entitled to assess the prospect of Shetty honouring a programme of monthly payments sourced from relatives in India as inherently uncertain.

In conclusion, the High Court dismisses Shetty's appeal against his sentence of imprisonment, finding that the District Court's approach to the sentence was not erroneous. The sentence of 16 months' imprisonment is within an acceptable range, and the refusal of home detention was justified based on the circumstances of the case.

Orders