Sudhakar v Police - [2023] NZHC 594

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…

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 Sudhakar v Police

Details

AGLC: Sudhakar v Police [2023] NZHC 594
Case: [2023] NZHC 594
Decision Date: 23 March 2023

CaseChat Overview and Summary

The High Court was called upon to determine the appeal of Mr Ashneel Sudhakar against the decision of Judge AM Manuel to refuse to discharge him without conviction for drink driving. The appeal focused on the consequences of the conviction for Mr Sudhakar, specifically his employment and potential travel impediments. The court had to decide whether the Judge erred in her assessment of the risk to Mr Sudhakar’s employment and whether the consequences of the conviction were out of proportion to the gravity of the offence.

The court examined the grounds of appeal and the evidence presented. The Judge had assessed the gravity of the offence as moderately serious, taking into account the public complaint, the high breath alcohol reading, and Mr Sudhakar’s personal circumstances. The Judge then assessed the direct and indirect consequences of a conviction, finding them to be modest. The court noted that Mr Sudhakar had lost his job after disclosing his conviction to his employer, but this was due to his driving under the influence, not the conviction itself. The court also found insufficient evidence to support Mr Sudhakar’s claim that the conviction impeded his ability to travel overseas.

The court concluded that the consequences of the conviction were not out of proportion to the gravity of the offence. The court held that the conviction did not cause the loss of employment, as the act of driving under the influence was already a serious breach of discipline. Furthermore, the court found insufficient evidence to support the claim that the conviction prevented Mr Sudhakar from obtaining employment in the IT industry.

The appeal was dismissed, and the conviction was upheld. The court found that neither at the date of sentencing, nor at the date of the appeal, were the consequences of the conviction out of proportion to the gravity of the offence.

Orders