Sudhakar v Police
[2023] NZHC 594
•23 March 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-349
[2023] NZHC 594
BETWEEN ASHNEEL SUDHAKAR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 21 March 2023 Counsel:
P T Eastwood for Appellant F J Gollogly for Respondent
Judgment:
23 March 2023
JUDGMENT OF BREWER J
This judgment was delivered by me on 23 March 2023 at 11 am
Registrar/Deputy Registrar
Solicitors/Counsel:
Peter Eastwood (Auckland) for Appellant Meredith Connell (Auckland) for Respondent
SUDHAKAR v POLICE [2023] NZHC 594 [23 March 2023]
Introduction
[1] On 26 April 2018, following a complaint from a member of the public, Mr Sudhakar was pulled over by police while driving in Newmarket, Auckland. He was found to have a breath alcohol reading of 828 micrograms of alcohol per litre of breath. Mr Sudhakar was charged with drink driving.1
[2] Mr Sudhakar’s case was called on 16 May 2018, 30 May 2018, 31 July 2018 and 20 December 2018. On that last call, Mr Sudhakar intimated that a guilty plea would be entered and this was done on 21 January 2019.
[3] Considerable delays followed before Mr Sudhakar came before Judge AM Manuel on 18 August 2022 for sentencing.2 Mr Sudhakar submitted he should be discharged without conviction. Judge Manuel declined to do so and entered a conviction. The Judge fined Mr Sudhakar $850, ordered that he pay court costs of
$130, and disqualified him from driving for 28 days. The Judge also directed that an interlock device be imposed.
[4] Mr Sudhakar now appeals the refusal by Judge Manuel to discharge him without conviction. His main grounds of appeal are that Judge Manuel erred in her assessment of the risk to his employment if a conviction was entered, and that in his current circumstances the conviction means he cannot get a job.3
Judge Manuel’s decision
[5] The Judge had three affidavits from Mr Sudhakar. One was filed in 2019, another in 2020 and a further affidavit was filed in the Court on the day of sentencing.
[6] The Judge went through the standard three-step analysis for determining, pursuant to s 107 of the Sentencing Act 2002, whether she could be satisfied that the
1 Land Transport Act 1998, s 56(1); maximum penalty, three months’ imprisonment and/or a fine of
$4,500.
2 Police v Sudhakar [2022] NZDC 15815.
3 Mr Eastwood for Mr Sudhakar also raised, faintly, a complaint that the original police prosecutor did not oppose a discharge without conviction, and that there might be impediment to travel to Canada. The first is irrelevant and there is no evidence materially supporting the second.
direct or indirect consequences of conviction for Mr Sudhakar would be out of all proportion to the gravity of his offending.
[7] The Judge assessed the gravity of the offending as being moderately serious. In doing so she took into account the complaint by the public as to Mr Sudhakar’s manner of driving which led to him being stopped by the police, and the high breath alcohol level (just over twice the level for criminal culpability).4
[8] The Judge also took into account Mr Sudhakar’s personal circumstances. He was of good character, having no prior convictions, and having a responsible long- term job. Mr Sudhakar was 46 years old and supporting his wife and children.
[9] The Judge then identified the direct and indirect consequences for Mr Sudhakar of entering a conviction. The position was complicated by the passage of time between the date of the offence and the date of the sentencing. Mr Sudhakar’s evidence was that he lost his employment as a consequence of notifying his employer of the charge against him. Shortly after, he obtained another job in his professional field of Information Technology (IT) (he had been a senior network engineer for 11 years with his previous employer). Mr Sudhakar had been in the new job for nearly three years by the time he was sentenced. The Judge was told that Mr Sudhakar had not disclosed to his new employer that he had pleaded guilty to the charge. His evidence was that if a conviction was entered he might lose the job. The Judge said:
[20] I have read the document appended to your affidavit of 29 January 2020, which is extracted from the Options Technology Ltd company handbook. The sections which deal with disciplinary procedure give examples of serious breaches of discipline, but the assertion made in your evidence that your job would be at risk if a conviction is entered is not supported in the evidence that you have provided. I accept that a conviction may not be helpful to your employment situation, but I am unable to accept on the evidence before the Court that the result would be the loss of your job.
[10] Mr Sudhakar had also submitted to the Judge that a conviction might impede his ability to travel overseas. However, there was no evidence as to any actual intention to travel or how a conviction might impede any travel.
4 Land Transport Act, s 56(1). The limit is “400 micrograms of alcohol per litre of breath”.
[11] The Judge assessed the gravity of the direct and indirect consequences of a conviction for Mr Sudhakar as “modest”.
[12] The Judge then turned to the decision as to whether the identified consequences of a conviction would be out of all proportion to the gravity of the offending. Her Honour’s conclusion was that they would not be.
The appeal
[13] An appeal against a refusal to discharge a defendant without conviction is a composite appeal against conviction and sentence.5 It is an appeal by way of rehearing. Although there is an onus on Mr Sudhakar to show error on the part of the Judge, I must reach my own view as to the merits of the case.
[14] The appeal is unclear in its focus. On the one hand, Mr Sudhakar seeks to rely on events which occurred after his sentencing to demonstrate that the Judge was in error. On the other hand, he wants me to look at his current circumstances as fresh evidence on his appeal. To this end, Mr Sudhakar filed a further affidavit affirmed on 20 March 2023.
[15] My view is that in an appeal by way of rehearing, I have to look not only at Judge Manuel’s decision but also at Mr Sudhakar’s current circumstances if there is fresh evidence that is relevant to whether or not his appeal should be allowed. I consider Mr Sudhakar’s latest affidavit is in this category and I will have regard to it.
[16] Mr Sudhakar’s affidavit tells me that a month or so after his conviction his employer ran a security check on him and became aware of his conviction. Mr Sudhakar deposes:
7.In late September, early October of 2022, I believe Options did in fact run a check on me and became aware that I now had a conviction for Drink Driving. I had been 3 years with Options and when I appeared in front of Judge Manuel I was employed by Options. The position is that upon conviction within a short period I was told my role was no longer available and I would no longer work for the company. I annex to my affidavit marked as “A”.
5 Jackson v R [2016] NZCA 627.
[17] Annex “A” is one page of a document headed “Notice”. It provides for termination of employment on 30 November 2022 and sets out payments due to Mr Sudhakar, including one month’s salary in lieu of notice.
[18] It is submitted on behalf of Mr Sudhakar that this demonstrates that Judge Manuel was in error in her assessment of whether loss of employment was a real risk for Mr Sudhakar in the event of a conviction.
Discussion
[19] First, I accept that the Judge was correct to describe the gravity of the offending as moderately serious. The fact that Mr Sudhakar’s driving prompted a complaint to the police, and the fact that he had more than twice the level of breath alcohol for criminal culpability, mean that a starting point for the gravity assessment would be at the high end of the moderate range to the low end of the serious range. Mr Sudhakar’s personal circumstances reduce the gravity assessment to moderately serious. It could not be less.6
[20] Second, I do not agree that Judge Manuel was in error in her assessment of the likely consequences. The Judge correctly took into account the extract from the staff handbook.7 This provides:
Serious breaches of discipline constituting gross misconduct for which the Company reserves the right to dismiss you without notice or payment in lieu of notice, examples of which include:
…
(h) intoxication through drink or non-prescribed drugs during working hours or on the Company or its clients’ premises; or driving under the influence of alcohol or drugs or have convictions for such.
[21] The approach that I must take in assessing the likely consequences of conviction, which includes events that have now occurred after the conviction, is whether the conviction itself is the cause of the impugned consequences. This Court and the Court of Appeal have held there is a relevant distinction between consequences
6 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [19].
7 Annex “B” to “Further unsworn affidavit of Ashneel Kumar Sudhakar in support of application for discharge without conviction” prepared for a hearing scheduled for 19 August 2020.
that flow from the offending and those that flow from the conviction.8 As is clear from the staff handbook, the act of driving under the influence of alcohol comes within the examples of serious breaches of discipline. Therefore, the fact of a conviction did not necessarily add to the risk Mr Sudhakar might lose his job. Mr Sudhakar’s termination is just as likely a consequence of his offending rather than his conviction.
[22] The Judge noted that Mr Sudhakar did not inform his employer in the job application process that he had pleaded guilty to the drink driving offence. His lack of candour in applying for the job might well have been influential. Consequently, the conviction may not have caused him to lose his job.
[23] In the event I am wrong, and Mr Sudhakar did in fact lose his job because of his conviction, I cannot remedy the current situation. There is no evidence before me that Mr Sudhakar’s old job would be available to him if he did not have a conviction. This consequence has already come to pass and cannot be reversed.
[24] Regardless, Mr Sudhakar wants me to take account of the events which followed. His submission is that as a result of the Judge entering the conviction he lost his job. Since then he has been unable to find another job. He puts this down to having to disclose his conviction. However, I note that the roles he specifies are all connected with driving. He says he applied for a job with the Automobile Association and to be an Uber driver or a courier driver. He also says:
17. I am currently unable to support my family financially as I have not been able to secure a management role in IT or an equivalent job which is causing me a lot of stress. I am deeply ashamed and embarrassed to find myself in this situation where I cannot support my family as I have been a hardworking person through my entire life.
[25] Mr Sudhakar is an experienced managerial-level professional in the IT industry. He has one conviction for drink driving. The conviction was entered in August of last year but the offending was more than five years ago. His previous employment ended on 30 November 2022.
8 Sok v R [2021] NZCA 252 at [47]; King v Police [2021] NZHC 1652 at [41]; Zhu v R [2021]
NZCA 254; and Anufe v Police [2021] NZCA 253.
[26] I do not accept that a single conviction for drink driving in relation to an incident which occurred more than five years ago is preventing Mr Sudhakar from obtaining employment in the IT industry, or in any industry in which a clean driving record is not a necessary prerequisite for employment. Simply put, there is insufficient evidence for me to conclude that Mr Sudhakar cannot obtain work because of his conviction.
[27] Further, the impugned consequences are not out of all proportion to the gravity of the offending. Many people every year are convicted of drink driving and all of them have to factor that conviction into their employment situation. That is a natural and expected consequence of such a conviction.
Decision
[28]I find that neither at the date of sentencing, nor at the date of this appeal:
(a)were the impugned consequences caused by Mr Sudhakar’s conviction; and
(b)were the direct or indirect consequences of conviction for Mr Sudhakar out of all proportion to the gravity of his offending.
[29]The appeal is dismissed.
Brewer J
0
4
0