PRAKASH v NEW ZEALAND POLICE [2023] NZHC 391

PRAKASH v NEW ZEALAND POLICE [2023] NZHC 391 [3 March 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-434[2023] NZHC 391BETWEEN KRISHI PRAKASHAppellantAND NEW ZEALAND POLICERespondentHearing: 14 February 2023Counsel: P Pati for AppellantJ Ah Koy for RespondentJudgment: 3 March 2023JUDGMENT OF HINTON JThis judgment was delivered by me on 3 March 2023 at 4.00 pm.Registrar/Deputy RegistrarDate: .Solicitors: Meredith Connell, Auckland[1] Mr Krishi Prakash was convicted and sentenced on one charge of driving withexcess breath alcohol1 and one charge of careless driving2 by Judge A M Fitzgibbonat the Auckland District Court on 11 October 2022.3 The Judge declined to grant adischarge without conviction.[2] Mr Prakash now appeals against his conviction and sentence on the groundsthat a discharge without conviction should have been granted because his convictionsare 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 OakdaleRoad, 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 theinitial 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 OakdaleRoad was also damaged as a result. The Police administered an evidential breathalcohol procedure at the scene on Mr Prakash, resulting in a reading of 911micrograms of alcohol per litre of breath.District Court decision[4] Judge Fitzgibbon addressed Mr Prakash's application for a discharge withoutconviction by considering the three-step test set out in the Court of Appeal's decisionin Z v R.4[5] The Judge began by assessing the gravity of Mr Prakash's offending. Whilethe Judge found that his offences were "moderately serious", especially given hisblood 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 thiskind 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 aconviction 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 toCanada) and his immigration status in New Zealand. Dealing first with the impact onhis employment, Judge Fitzgibbon noted that there was nothing in Mr Prakash'saffidavit in support to suggest that he was at risk of losing his job. Instead, there wasonly a concern that he might have difficulty gaining employment in the future or beingpromoted 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 themarriage proposal had not yet been accepted. Third, the Judge considered that whetheror not the conviction affected Mr Prakash's residency was a matter for the authoritiesand this was not a case where he would be disconnected from his family in NewZealand, his family being still in India.[7] Finally, in light of the direct and indirect consequences identified, the Judgeconcluded that these consequences would not be out of all proportion to the gravity ofthe offending.The appeal[8] Mr Pati, for Mr Prakash, submits Judge Fitzgibbon erred in not finding thedirect and indirect consequences of Mr Prakash's conviction to be out of all proportionto his offending. Beginning with the gravity of Mr Prakash's offending, Mr Patiemphasises Mr Prakash's previously unblemished criminal record, his guilty plea, hisacceptance of responsibility for the harm done, his remorse, his efforts to rehabilitatehimself and his good character. Specifically, counsel submits that Mr Prakash hasshown remorse and the taking of responsibility by apologising and paying reparationsthrough his insurance company, through his attendance and completion of drink-driving, defensive driving and alcohol counselling programmes, all undertakenthrough his own initiative, and that his good character is reflected through both thecharacter references provided to the Court and his receipt of an employee of the yearaward in 2022.[9] Mr Pati submits that there are several direct and indirect consequences forMr Prakash arising out of his conviction. First, he says Mr Prakash will have todisclose his conviction to the Director of Civil Aviation, which may affect hiseligibility for renewal of his Regulated Air Cargo Agent (RACA) licence and thereforehis current employment. Second, a conviction will hinder his ability to be promotedboth generally by his current employer and specifically to the role of health and safetyofficer, with the indirect consequence of exacerbating his current financial problemsand therefore the mental strain he feels. Third, Mr Prakash's conviction will jeopardisehis ability to accept a marriage proposal arranged by his parents and to migrate toCanada, that being his would-be fiancée's plan. Fourth, a conviction may affect hisimmigration status and hinder his ability to travel overseas generally, particularly forwork.[10] Counsel contends that Judge Fitzgibbon erred especially in her assessment thatan impaired ability to travel overseas was not a consequence for Mr Prakash becausethe need to travel had not yet "come to fruition". Counsel submits instead that thisshould have been considered a consequence given there is a real and appreciable riskthat this would occur. In light of this, Mr Pati submits that the real and appreciablerisk that these consequences would result from a conviction are such that theconsequences 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 vPolice,5 Police v Ping,6 Snellex v Police,7 Papuni v Police,8 and Waight v Police,9 allconcerning applications for a discharge without conviction for similar drink-drivingoffending. 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 andcareless driving charges but sought a discharge on the basis that such a convictionwould jeopardise his ability to study medicine internationally and that he would beunable to travel to Canada, where Mr Maraj's parents had intended to settle. In respect5 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 therewas no appreciable risk that his conviction would preclude him from studyingmedicine, that his conviction was relevant to his aspiration to practice as a doctor andthat this information should be available for assessment by the proper institutions.10As for the second, the Court considered that, despite the fact his conviction wouldaffect him travelling to Canada (given he would likely need to wait at least five yearsto successfully apply),11 that this was only temporary and, while inconvenient, not outof all proportion to the gravity of his offending.12[13] Mr Pati submits that Maraj is distinguishable given Mr Prakash's marriageproposal may not survive a five-year waiting period and that, as Mr Prakash wants tostart his life and family in Canada, the effects are significantly more disproportionatein his case.[14] In Police v Ping, the defendant, an international student who had applied for astudent visa, was driving the victim's mother's car when he lost control, swerved leftand hit a barrier on the left side of the motorway. He had previously been drinkingwith the victim at a mutual friend's birthday party. Judge Singh considered the overalloffending to be "at the lower end of the moderate spectrum", taking into accountvarious mitigating factors.13 The Judge considered that if convicted, the defendantwould be at real risk of being deported,14 given he was on an interim visa pending thedisposition of the case. He was also at risk of being unable to enrol in a ChineseUniversity,15 and to obtain a job either in New Zealand or in China.16 This led theJudge to conclude that the consequences of a conviction would be out of all proportionto the gravity of the offending.17[15] Mr Pati submits that the same risks of being unable to find future employmentand 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 todriving with excess breath alcohol. His conviction arose after his vehicle wasobserved to be swerving within its lane, and after his breath alcohol was found tocontain 652 micrograms of alcohol per litre. Muir J considered the offending to beout of character for the appellant,18 and, in light of his remorse and efforts atrehabilitation, his offending was moderately serious.19 The appellant argued that thereal consequence of a conviction for him was on his ability to obtain and retainemployment, evidenced in the loss of his job as an instructor pilot. He could notadvance his career in the aviation industry, without which he would be left unable toservice his substantial student debt. Muir J found that the evidence submitted by theappellant as to why he lost his employment did not sufficiently explain that he lost hisemployment due to his conviction and did not suggest that future employment wouldbe "impossible".20 Muir J found, noting the importance of the aviation industry beingfully informed of an applicant's history,21 that the consequences were not out of allproportion to the gravity of his offending.[17] Mr Pati seeks to distinguish this case in three ways. The first is on the basisthat 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 unlikethe 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 regulatorsbeing made aware of his conviction are not engaged in Mr Prakash's case particularlybecause his career does not involve matters of life or death.[18] In Waight v Police, the appellant, a newly qualified police officer, was stoppedat a police checkpoint where he subsequently tested in excess of the legal limit forbreath alcohol. He had been at a farewell function where he drank six cans ofWoodstock. Conscious of his drinking and the law, he administered two breath alcoholtests of his own which, due to being wrongly assembled, gave incorrect readings thathe was under the legal limit. Winkelmann J found the level of alcohol (732micrograms) to be high, but noted that there was nothing irregular in the appellant's18 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 overthe legal limit.22 The Judge also found that there was a likelihood a conviction wouldresult in an 18 month stand down were he to be successful in his employmentapplication with the navy, that he had already lost his career with the police (and sorelevant public safety considerations had already been met) and that he had sufferedsufficient consequences that the Court could be satisfied he was deterred fromoffending again.23 In light of this, Winkelmann J concluded that the consequenceswere out of all proportion to the seriousness of the offence. Mr Pati submits the sameconsiderations as to employment prospects apply in Mr Prakash's case, and publicsafety concerns are alleviated by the appellant's disqualification.[19] In Papuni v Police, the appellant was pulled over due to the manner of hisdriving. He was over the legal limit by 22 milligrams, had no previous convictionsand pleaded guilty to his offending. His drink-driving arose after having a drink torelax 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 hadnot eaten. Duffy J assessed the appellant's consequences of a conviction to be a specialrisk of losing his job due to the likely requirements from either a franchisor companyor the Ministry of Social Development that all franchise employees had to beconviction-free.24 She said there was also a risk of not being able to travel to countriesto which the appellant had previously travelled and to which he would likely need stillto travel because of his competitive dancing. Duffy J concluded that the appellant'soffending was out of character for him,25 that he had simply made a serious error injudgment and that his dancing career and employment would be at serious risk ofending if the conviction remained in place.26 Mr Pati submits that Mr Prakash'soffending should be similarly regarded as out of character, and that Duffy J'sconclusions 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 onMr Prakash's employment and ability to travel (and the follow-on consequences) were22 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 gravityof the offending. First, in relation to Mr Prakash's employment, Ms Ah Koy submitsthere was no evidence to suggest there was a real and appreciable risk that he wouldlose his RACA licence, and that any such consequences had to give way to the Directorof Civil Aviation's right to know the full background of those working within theaviation industry. Further, Mr Prakash does not appear to have suffered anyconsequences given the support of his employer and his recent employee of the yearaward, 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 travelto Canada is speculative. There is no evidence as to the status of his would-befiancée'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 hehas 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 speculationover the effect of Mr Prakash's conviction on his immigration status, given thatimmigration authorities enjoy access to and possess expertise generally not availableto the Courts.[22] In response to the five decisions referred to by Mr Pati, Ms Ah Koy submitsthat while similar cases may provide guidance, all cases ultimately turn on their ownfacts. She concludes by submitting that the consequences for Mr Prakash are, far frombeing disproportionate to his offending, predictable and unexceptional.Law[23] Section 106 of the Sentencing Act 2002 gives the Court discretion to dischargean offender without a conviction. However, such discretion is exercised pursuant tos 107, which provides:The court must not discharge an offender without conviction unless the court issatisfied that the direct and indirect consequences of a conviction would be out of allproportion to the gravity of the offence.[24] An appeal against a refusal to grant a discharge without conviction is an appealagainst both a conviction and sentence.27 Such appeals must be allowed if theappellate judge concludes that a "miscarriage of justice" has occurred,28 either becausethe sentencing Judge made a material error in entering the conviction or because theyerred in applying the principles for discharging a conviction under s 107.29Accordingly, the appellate Court must make its own assessment of the application'smerits.30[25] In determining whether a discharge without conviction could have beengranted, the Court must consider: (a) the gravity of the offence; (b) the direct andindirect consequences of a conviction; and (c) whether those consequences are out ofall 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 theoffending and the offender.32 The Court must also be satisfied that there is a "real andappreciable" risk that any given consequence of a conviction will happen.33Discussion[26] While Mr Pati made submissions that related to gravity of offending, thosefactors are not relevant here. The Judge has already taken those into account in herfinding that gravity was on the low side for this category of offence. That finding wasas generous to Mr Prakash as possible.[27] Mr Pati did not pursue orally any argument as to effect on Mr Prakash'simmigration status or on his ability to travel for work. There is no or clearlyinsufficient evidence on those points.[28] The key questions in this appeal are whether Judge Fitzgibbon erred inassessing the consequences for Mr Prakash's future employment and for the marriage27 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 14131 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 ofhis offending.Employment Consequences[29] While Mr Pati relies on Ping, Waight and Papuni, the facts are materiallydifferent here. Not only has Mr Prakash maintained his employment, he has succeededin his employment to his credit in spite of his conviction, as his recent employee ofthe year award demonstrates. Waight is easily distinguishable because the appellantwas able to demonstrate the real downside a conviction would have on hisemployment. He had already lost his job as a police officer and would be very likelyto be stood down for a period of a year and a half in his new position, both significantconsequences. Unlike in Papuni, Mr Prakash has not put forward independentevidence to demonstrate that his licence will not be renewed. It is also not clear thatsuch a licence is a pivotal part of his work.[30] Further, Courts are very reluctant to place regulators in a position where theyare unaware of the very matter they seek to regulate, as illustrated by Snellex. TheCourt of Appeal in Maraj endorsed the reasoning of Wylie J in Roberts v Police:34I can well accept that if a conviction is going to result in an absolute bar to theoffender gaining entry to some profession or career then it may well beappropriate to ameliorate that consequence in an appropriate case by decliningto enter a conviction. Where, however, Parliament has seen fit to establishstatutory authority with the task of selecting or screening applicants foradmission to whatever trade or profession may be involved then clearlyParliament has contemplated that those bodies should exercise a discretion asto admission in the light of the expertise that those bodies will build up over aperiod of time and with the knowledge of the kind of qualities that areappropriate for the particular trade or profession and those which renderadmission to that trade or profession inappropriate. It seems to me, and in thisrespect 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 itsdiscretion as to what may or may not be relevant on the seeking of admissionto a particular profession for the discretion which Parliament has seen fit tovest in a statutory body. Indeed it is not perhaps going too far to say that to doso the Court would be actively concealing from the statutory body informationwhich 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 dischargewithout conviction is the importance of regulators and other public bodies chargedwith the oversight of particular industries to be fully informed of the backgrounds ofthose practicing within their purview. This consideration is directly applicable toMr Prakash because, as Mr Pati submits, his conviction will have to be disclosed tothe 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 chosenregulated profession is insufficient by itself to demonstrate that the adverseconsequences on employment will outweigh the gravity of the offending. It would bea 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 theparents of Mr Prakash have made the marriage proposal, not knowing of Mr Prakash'sconviction and the consequential migration difficulties for him. The proposed bridewishes 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 standingin the family.[33] I accept there is a risk that Mr Prakash would not be able to migrate to Canadain a timely manner and that, as a consequence, he would not be able to accept themarriage proposal and his parents would be deeply upset. I am not satisfied that riskis appreciable because it is unknown whether the proposed fiancée would be able tomigrate herself. In any event, that situation has arisen not as a consequence of theconviction but of Mr Prakash not telling his parents about it. As Mr Pati accepted, themarriage proposal could have been, not with someone wishing to emigrate from Indiato Canada, but rather with someone prepared to come to New Zealand or living in NewZealand. While I accept that the societal impact on Mr Prakash's parents and onMr Prakash himself of the breath alcohol conviction might be greater than on manyother families, I do not consider that such a consequence would be totallydisproportionate to the gravity of the offence, or that the Court should be in thebusiness of aiding people in hiding convictions from their parents. It would create adangerous precedent. Societal limitations and personal humiliation and distress arethe natural consequences of many convictions.[34] Finally, I note that the two arguments raised by the appellant conflict with eachother. One focuses on Mr Prakash's future employment prospects in New Zealand andthe 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 aconviction for Mr Prakash are not totally disproportionate to the gravity of the offence.Order[36] The appeal is dismissed._____________________Hinton J