SUDHAKAR v POLICE [2023] NZHC 594

SUDHAKAR v POLICE [2023] NZHC 594 [23 March 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-349[2023] NZHC 594BETWEEN ASHNEEL SUDHAKARAppellantAND NEW ZEALAND POLICERespondentHearing: 21 March 2023Counsel: P T Eastwood for AppellantF J Gollogly for RespondentJudgment: 23 March 2023JUDGMENT OF BREWER JThis judgment was delivered by me on 23 March 2023 at 11 amRegistrar/Deputy RegistrarSolicitors/Counsel:Peter Eastwood (Auckland) for AppellantMeredith Connell (Auckland) for RespondentIntroduction[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. Hewas found to have a breath alcohol reading of 828 micrograms of alcohol per litre ofbreath. Mr Sudhakar was charged with drink driving.1[2] Mr Sudhakar's case was called on 16 May 2018, 30 May 2018, 31 July 2018and 20 December 2018. On that last call, Mr Sudhakar intimated that a guilty pleawould be entered and this was done on 21 January 2019.[3] Considerable delays followed before Mr Sudhakar came before JudgeAM Manuel on 18 August 2022 for sentencing.2 Mr Sudhakar submitted he shouldbe discharged without conviction. Judge Manuel declined to do so and entered aconviction. 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 aninterlock device be imposed.[4] Mr Sudhakar now appeals the refusal by Judge Manuel to discharge himwithout conviction. His main grounds of appeal are that Judge Manuel erred in herassessment of the risk to his employment if a conviction was entered, and that in hiscurrent circumstances the conviction means he cannot get a job.3Judge 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 the1 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 prosecutordid not oppose a discharge without conviction, and that there might be impediment to travel toCanada. 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 allproportion 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'smanner of driving which led to him being stopped by the police, and the high breathalcohol level (just over twice the level for criminal culpability).4[8] The Judge also took into account Mr Sudhakar's personal circumstances. Hewas 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 forMr Sudhakar of entering a conviction. The position was complicated by the passageof time between the date of the offence and the date of the sentencing. Mr Sudhakar'sevidence was that he lost his employment as a consequence of notifying his employerof the charge against him. Shortly after, he obtained another job in his professionalfield of Information Technology (IT) (he had been a senior network engineer for11 years with his previous employer). Mr Sudhakar had been in the new job for nearlythree years by the time he was sentenced. The Judge was told that Mr Sudhakar hadnot disclosed to his new employer that he had pleaded guilty to the charge. Hisevidence 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 January2020, which is extracted from the Options Technology Ltd companyhandbook. The sections which deal with disciplinary procedure giveexamples of serious breaches of discipline, but the assertion made in yourevidence that your job would be at risk if a conviction is entered is notsupported in the evidence that you have provided. I accept that a convictionmay not be helpful to your employment situation, but I am unable to accepton 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 impedehis ability to travel overseas. However, there was no evidence as to any actualintention 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 aconviction for Mr Sudhakar as "modest".[12] The Judge then turned to the decision as to whether the identified consequencesof a conviction would be out of all proportion to the gravity of the offending. HerHonour's conclusion was that they would not be.The appeal[13] An appeal against a refusal to discharge a defendant without conviction is acomposite appeal against conviction and sentence.5 It is an appeal by way ofrehearing. Although there is an onus on Mr Sudhakar to show error on the part of theJudge, 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 relyon events which occurred after his sentencing to demonstrate that the Judge was inerror. On the other hand, he wants me to look at his current circumstances as freshevidence on his appeal. To this end, Mr Sudhakar filed a further affidavit affirmed on20 March 2023.[15] My view is that in an appeal by way of rehearing, I have to look not only atJudge Manuel's decision but also at Mr Sudhakar's current circumstances if there isfresh evidence that is relevant to whether or not his appeal should be allowed. Iconsider 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 hisemployer 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 factrun a check on me and became aware that I now had a conviction forDrink Driving. I had been 3 years with Options and when I appearedin front of Judge Manuel I was employed by Options. The position isthat upon conviction within a short period I was told my role was nolonger available and I would no longer work for the company. I annexto 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 fortermination of employment on 30 November 2022 and sets out payments due toMr Sudhakar, including one month's salary in lieu of notice.[18] It is submitted on behalf of Mr Sudhakar that this demonstrates that JudgeManuel was in error in her assessment of whether loss of employment was a real riskfor Mr Sudhakar in the event of a conviction.Discussion[19] First, I accept that the Judge was correct to describe the gravity of the offendingas moderately serious. The fact that Mr Sudhakar's driving prompted a complaint tothe police, and the fact that he had more than twice the level of breath alcohol forcriminal culpability, mean that a starting point for the gravity assessment would be atthe high end of the moderate range to the low end of the serious range. Mr Sudhakar'spersonal circumstances reduce the gravity assessment to moderately serious. It couldnot be less.6[20] Second, I do not agree that Judge Manuel was in error in her assessment of thelikely consequences. The Judge correctly took into account the extract from the staffhandbook.7 This provides:Serious breaches of discipline constituting gross misconduct for which theCompany reserves the right to dismiss you without notice or payment in lieuof notice, examples of which include:(h) intoxication through drink or non-prescribed drugs during workinghours or on the Company or its clients' premises; or driving under theinfluence of alcohol or drugs or have convictions for such.[21] The approach that I must take in assessing the likely consequences ofconviction, which includes events that have now occurred after the conviction, iswhether the conviction itself is the cause of the impugned consequences. This Courtand the Court of Appeal have held there is a relevant distinction between consequences6 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 applicationfor 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 fromthe staff handbook, the act of driving under the influence of alcohol comes within theexamples of serious breaches of discipline. Therefore, the fact of a conviction did notnecessarily add to the risk Mr Sudhakar might lose his job. Mr Sudhakar's terminationis 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 jobapplication process that he had pleaded guilty to the drink driving offence. His lackof candour in applying for the job might well have been influential. Consequently, theconviction 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 ofhis conviction, I cannot remedy the current situation. There is no evidence before methat 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 whichfollowed. His submission is that as a result of the Judge entering the conviction helost his job. Since then he has been unable to find another job. He puts this down tohaving to disclose his conviction. However, I note that the roles he specifies are allconnected with driving. He says he applied for a job with the Automobile Associationand 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 notbeen able to secure a management role in IT or an equivalent jobwhich is causing me a lot of stress. I am deeply ashamed andembarrassed to find myself in this situation where I cannot supportmy family as I have been a hardworking person through my entire life.[25] Mr Sudhakar is an experienced managerial-level professional in the ITindustry. He has one conviction for drink driving. The conviction was entered inAugust of last year but the offending was more than five years ago. His previousemployment 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 anincident which occurred more than five years ago is preventing Mr Sudhakar fromobtaining employment in the IT industry, or in any industry in which a clean drivingrecord is not a necessary prerequisite for employment. Simply put, there is insufficientevidence for me to conclude that Mr Sudhakar cannot obtain work because of hisconviction.[27] Further, the impugned consequences are not out of all proportion to the gravityof the offending. Many people every year are convicted of drink driving and all ofthem have to factor that conviction into their employment situation. That is a naturaland 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 Sudhakarout of all proportion to the gravity of his offending.[29] The appeal is dismissed.________________________________Brewer J