KUMAR v POLICE [2021] NZHC 2186

KUMAR v POLICE [2021] NZHC 2186 [24 August 2021]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2021-488-1[2021] NZHC 2186BETWEEN SALESH SARWAN KUMARAppellantAND NEW ZEALAND POLICERespondentHearing: 19 July 2021 (further submissions received 6 and 9 August 2021)(Heard at Hamilton)Appearances: G Haszard for the Appellant (via VMR) I Hayden for the RespondentJudgment: 24 August 2021JUDGMENT OF GAULT JThis judgment was delivered by me on 24 August 2021 at 4:00 pm.Registrar/Deputy RegistrarSolicitors / Counsel: Ms G Haszard, Barrister, Tauranga Ms I Hayden, Pollett Legal Ltd, Office of the Crown Solicitor, Tauranga[1] Following guilty pleas, Mr Kumar was convicted of one charge of threatening behaviour 1 and one charge of failing to answer bail 2 by Judge I D R Cameron in the Tauranga District Court on 4 November 2019. 3[2] Mr Kumar seeks leave to appeal his convictions well out of time. The respondent opposes leave. Brewer J directed that there not be a separate leave hearing. 4[3] The nub of the proposed appeal is that Mr Kumar should have been discharged without conviction under s 106 of the Sentencing Act 2002 (the Act). The grounds of appeal claim that defence counsel should have advanced a s 106 application and that the Judge should have considered discharge under s 11 of the Act.Summary of facts[4] On 7 August 2018 at around 1:30 pm, Mr Kumar was at home with his wife (the victim) and their children. Mr Kumar was chopping some vegetables with a kitchen knife in the kitchen while his wife was seated at a child's table on the other side of the kitchen counter. He and his wife were having an argument about some relationship issues that had been going on for some time. Mr Kumar became angry with his wife for wanting to continue the argument. He walked around the counter and approached his wife, who was sitting in a low chair. He grabbed her about the neck and told her to shut up. She quickly fled the room and called police.[5] In explanation, Mr Kumar said "I just got angry with her".[6] The failing to answer bail charge arose following Mr Kumar's failure to appear in the Whangārei District Court on the first charge on 5 October 2018.1 Summary Offences Act 1981, s 21(1)(a). Maximum penalty 3 months' imprisonment or a $2,000 fine.2 Bail Act 2000, s 38(a). Maximum penalty 1 year's imprisonment or a $2,000 fine.3 New Zealand Police v Kumar [2019] NZDC 26736.4 Minute of Brewer J dated 4 February 2021.The District Court decision[7] The Judge noted there had been a change of plea to guilty on the charges. The Judge convicted Mr Kumar on the threatening behaviour charge, and fined him $100 and Court costs of $130. On the failing to answer bail charge, the Judge convicted and discharged Mr Kumar.Leave to appeal[8] The appeal is brought significantly out of time. Accordingly, Mr Kumar applies, pursuant to ss 231 and 248 of the Criminal Procedure Act 2011, for an extension of time to appeal.[9] When leave is required for an extension of time, the question is whether it is in the interests of justice to grant the extension, taking into account all relevant circumstances. Two questions arise: first, why the proposed appeal was filed so late and, secondly, whether it has merit. 5 Often the second question will be determinative of the interests of justice and, therefore, the application for leave. 6[10] Mr Kumar's explanation for filing the appeal so late is that the contract for his Jani-King commercial cleaning franchise business was terminated in September 2020 as a result of the convictions, which prompted him to seek legal advice. There was then some further delay while legal aid counsel was assigned to advise, obtained the file, provided advice and liaised further in relation to legal aid for an appeal. The notice of appeal was filed on 11 January 2021.[11] As to the second question, Ms Haszard, for Mr Kumar, submitted the appeal has merit and it is in the interests of justice to hear the appeal. The primary basis for the appeal is that no consideration was given to discharge without conviction and Mr Kumar has suffered direct and indirect consequences as a result of the convictions which outweigh the gravity of the offences.5 Smith v R [2020] NZCA 221 at [3].6 At [3].[12] Ms Hayden, for the respondent, submitted that an appeal against sentence and conviction a year and a half after the conviction was entered is no longer in the interests of justice, nor does it have merit to satisfy the Court that leave should be granted.[13] Mr Kumar's explanation for the delay until September 2020 is in essence that he only discovered he could have applied for a discharge without conviction when the consequences of conviction led him to seek legal advice. Before commenting on that explanation, it is necessary to refer to further background.[14] The prosecution was originally brought in Whangārei and was transferred to Tauranga where Mr Kumar was bailed. Although unfortunately unknown to either counsel at the hearing on 4 November 2019, at an earlier appearance in Whangārei on his judge alone trial date of 12 June 2019 Mr Kumar had entered a guilty plea on the threatening behaviour charge and it was noted on the Court file that if he satisfactorily completed the Man Alive Programme, and there were no further issues, the police would not oppose a discharge without conviction under s 106. Also, in a memorandum to the Whangārei District Court on 13 August 2019, Mr Kumar's former counsel stated that at the previous appearance he had indicated it was likely Mr Kumar would seek a discharge without conviction, that the police had indicated that they would not oppose provided Mr Kumar engaged with a stopping violence programme and that Mr Kumar had started counselling with Living Without Violence but would not finish the counselling until December 2019 or February 2020. At the hearing on 4 November 2019 there was reference to Mr Kumar's attendance at the Living Without Violence course but not to discharge without conviction.[15] The Court notation on 12 June 2019 and the 13 August 2019 memorandum appear inconsistent with Mr Kumar's explanation for the delay until September 2020. Those documents suggest Mr Kumar was aware of the possibility of discharge without conviction. Against that background, one might expect him to raise it with the duty solicitor and provide details of his relevant work circumstances. Since he did not, one might infer that he did not want to wait any longer and deliberately chose to expedite resolution by not seeking a discharge. But an alternative inference is that in November 2019 Mr Kumar overlooked that possibility or at least did not think to raise it because he did not appreciate the likely consequences of conviction. He merely told the dutysolicitor that he had been attending the Living Without Violence course. She told the Judge and handed up a certificate. A copy of that certificate was not available at the appeal hearing to confirm whether the course had been completed.[16] Ms Hayden submitted there was too much speculation. But, insofar as the uncertainty relates to completion of the course, as Ms Haszard submitted, if a s 106 discharge without conviction application had been made, the matter would have been adjourned whether or not the course had been completed. Further time would have enabled completion. Insofar as the uncertainty relates to why an application was not made, I do not infer that Mr Kumar deliberately made an informed choice to expedite resolution by accepting convictions rather than seek a discharge.[17] Given the uncertainty as to whether Mr Kumar had completed the course, and in relation to the consequences of his convictions, in the unusual circumstances of this case the respondent did not oppose giving Mr Kumar the opportunity to provide updating information. The updating information filed on 6 August 2021 indicated that Mr Kumar had completed 13 of 20 sessions of the Living Without Violence programme in 2019. Following conviction, he did not complete any further sessions because he considered there was no point.[18] In any event, in the unusual circumstances of this case, I accept that Mr Kumar has provided some explanation for his delay in seeking to appeal. I also accept the explanation for the subsequent further delay between September 2020 and January 2021 when the notice of appeal was filed. While the subsequent delays are also unfortunate, I do not consider they are fatal here.[19] I will therefore consider whether the appeal has merit before determining whether to grant leave to appeal out of time.Counsel error[20] A counsel error process was undertaken on appeal with affidavits filed by Mr Kumar and Ms Nabney who was acting as duty solicitor at the Tauranga District Court on 4 November 2019. But the parties have now agreed that as s 106 does not appear to have been considered by the Judge, if leave is granted the issues on appealcan be narrowed to focus on whether a s 106 discharge ought to have been granted, and the evidence on appeal in relation to the circumstances of sentencing and other peripheral issues is irrelevant. Ms Haszard emphasised there was no criticism of counsel or the Judge given the way the matter proceeded.Approach on appeal[21] An appeal against a refusal or failure to grant a discharge without conviction can be an appeal against both conviction and sentence. 7 But here no separate issue is taken with the correct sentence.[22] A conviction appeal must be allowed if a miscarriage of justice has occurred for any reason. 8 A miscarriage of justice means any error, irregularity, or occurrence in, or in relation to, or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.9A guilty plea is included within the meaning of 'trial' for this purpose. But it is only in exceptional circumstances that an appeal against conviction will be entertained following the entry of a guilty plea.[23] Where an application for discharge without conviction is not advanced in the District Court at sentencing, the appeal court is unlikely to grant a discharge unless there is a good reason why the application was not made at sentencing, or some basis for finding a miscarriage of justice. 10 A miscarriage may occur by virtue of a material error by the sentencing Judge in entering a conviction or if the Judge erred in applying the principles in relation to discharging an offender without conviction under s 107 of the Act.Discharge without conviction[24] Section 11(1)(a) of the Act provides:7 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]–[8] and [16].8 Criminal Procedure Act 2011, s 232(2)(c).9 Section 232(4).10 Winterburn v R [2019] NZHC 104 at [10]; Randhawa v Police [2016] NZHC 1909 at [16];Barrington-Nash v Police [2012] NZHC 868 at [7]; Ho v R [2016] NZCA 229 at [11]; and Ho v Police [2015] NZHC 3156.If a person who is charged with an offence is found guilty, or pleads guilty, before entering a conviction and imposing a sentence the court must consider whether the offender would be more appropriately dealt with by—(a) discharging the offender without conviction under section 106; [25] Under s 106, the Court has a discretion to discharge without conviction a person who has pleaded guilty to an offence. 11 Under s 107, this discretion cannot be exercised unless the Court is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. This requires the Court to undertake the following three-step analysis: 12(a) consider the gravity of the offence, taking into account the aggravating and mitigating factors of the offending and offender;(b) consider the direct and indirect consequences of a conviction; and(c) consider whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.[26] The proportionality test under s 107 is a question of fact requiring judicial assessment. If the appellant can show that the first instance decision was wrong, the evaluation of the s 107 factors is considered afresh. 13[27] If s 107 is satisfied, the Court must still decide whether to exercise its discretion under s 106; however, as Ms Hayden accepts, it will be a rare case where the Court will refuse to do so. 14Discussion[28] Given the unusual way the matter proceeded in the District Court, counsel agreed that this is a case where this Court may consider a discharge without convictionde novo on the basis of the further evidence before the Court on appeal. Given it was11 Unless an enactment provides otherwise, which does not apply here.12 Z (CA447/2012) v The Queen [2012] NZCA 599, [2013] NZAR 142 at [8] and [27], applied inBasnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [15].13 See Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].14 Z (CA447/2012) at [27] citing Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].Mr Kumar's first conviction, s 11 consideration of whether he would more appropriately be dealt with by discharge without conviction could well have led to engagement with his franchisor before convictions were entered.The gravity of the offence[29] The first issue is to consider the gravity of the offence committed (not the gravity of this offending compared with other cases involving the same offence). 15Ms Haszard submitted the Judge correctly characterised the lead charge of threatening behaviour as "relatively low end offending". She submitted the failure to appear charge is also low end offending. Ms Hayden accepted the threatening behaviour offending "is not the most serious of its kind". Counsel agreed that the following aggravating features of the offending are present:(a) the offending occurred in the context of a family relationship; and(b) it occurred in front of the parties' two young children.[30] Ms Haszard also acknowledged as an aggravating feature the fact Mr Kumar grabbed the victim by the neck.[31] In terms of personal aggravating features, Ms Hayden acknowledged that Mr Kumar does not have any previous convictions, but she noted that during the current proceedings he failed to appear on two occasions resulting in two warrants for his arrest.[32] Ms Haszard submitted that the seriousness of the charge and the aggravating features outlined above must be balanced against Mr Kumar's personal mitigating circumstances, the cumulative effect of which is that the offending was low level:(a) Mr Kumar attended the Living Without Violence programme;15 Z (CA447/2012) v The Queen [2012] NZCA 599, [2013] NZAR 142 at [31].(b) since the offending on 7 August 2018 there have been no further court matters involving Mr Kumar and the victim;(c) Mr Kumar acknowledges that his conduct on 7 August 2018 was not okay; and(d) after the move to Tauranga the marriage improved but unfortunately could not survive the loss of the couple's business as a result of Mr Kumar's convictions.[33] Threatening behaviour in this family context is not to be downplayed, but the police prosecutor agreed with the Judge that it was relatively low end offending. In the circumstances, I accept that characterisation. The maximum penalty for this offence in the Summary Offences Act 1981 is three months' imprisonment or a $2,000 fine.16Mr Kumar was fined $100. Mr Kumar has no previous convictions and has acknowledged his behaviour, including by attending the Living Without Violence course.Direct and indirect consequences of conviction[34] Mr Kumar said that as a result of the convictions he:(a) lost his Jani-King franchise business, which he said was valued at approximately $250,000 as at 1 September 2020;(b) lost his $65,000 deposit paid into the business;(c) lost his income (Mr Kumar estimated his total loss of monthly income was approximately $85,000);(d) lost his marriage (Mr Kumar said the relationship improved while in Tauranga but that it subsequently ended as a result of the loss of the franchise); and16 Section 21(1)(a).(e) has suffered significant mental and physical health consequences. Mr Kumar has been referred for counselling for severe depression, suicidal thoughts and severe levels of distress.[35] Ms Haszard submitted the Court is not being invited to speculate as to the direct and indirect consequences of conviction; the consequences are clearly evidenced. She acknowledged that Mr Kumar's financial loss amounts were indicative only but submitted he has suffered significant financial loss.[36] Ms Haszard further submitted that Mr Kumar has been invited to reapply to be a shareholder and/or a director of his unit franchise if his convictions are overturned, and that he intends to do so if a discharge without conviction is granted on appeal. Mr Kumar considered this will enable him to re-establish himself financially and assist in improving his mental health and wellbeing.[37] Ms Hayden accepted that the Court need not be satisfied that the direct and indirect consequences of conviction will inevitably or probably occur; it is sufficient if the Court is satisfied there is a real and appreciable risk of such consequences. 17Ms Hayden also accepted that the conviction affects Mr Kumar's ability to be a shareholder or director of his franchise, but she submitted that as the conviction was entered in November 2019, any consequence has already been realised, which is a significant hurdle. Ms Hayden acknowledged Mr Kumar's financial and personal stress but again submitted there was too much speculation.[38] Ms Hayden noted that Mr Kumar's franchise termination letter said that all accounts serviced "inhouse" would be transferred to a new unit franchise owned by Mr Kumar's wife. That franchise would be provided to his wife "as a gesture of goodwill from Jani-King, to ensure that your current investment is not lost". Jani-King would provide a franchise licence to her at no cost, the inhouse accounts with no finders' fees and the franchisee would not need to purchase a new start up kit.[39] I accept that a consequence of the convictions was that the Jani-King Bay of Plenty Franchise was terminated. As Ms Haszard submitted, conviction was the17 DC (CA47/2013) v R [2013] NZCA 255 at [43].catalyst for what followed, whether or not the franchisor was entitled to terminate – that is a separate issue that Ms Haszard acknowledged could be pursued. I note the alleged offending initially was that Mr Kumar threatened his wife with a knife, but this was removed from the summary of facts. Despite that, the conviction is recorded as Behave Threateningly (Other Weapon). Also, the franchise termination letter referred to a large kitchen knife, which Mr Kumar explained by saying he believes this is the result of being upfront with Jani-King about exactly what happened but that he never threatened his wife with a knife.[40] Two issues arise on the facts of this case. First, the effect of the termination given that a new franchise was apparently established in Mr Kumar's wife's name. Secondly, the significance of the franchisor's statement in an email of 3 September 2020 that "should the conviction be overturned then I am happy for you to become a shareholder and or director of your unit franchiser [sic] at that time!!".[41] As indicated, the respondent did not oppose giving Mr Kumar the opportunity to provide updating information. The updating information filed on 6 August 2021 indicated that Mr Kumar's wife did not take over any accounts and she does not operate a Jani-King franchise. Mr Kumar said he asked if he could sell his licence to a third party or his wife to gain their investment back but Jani-King advised this would not be possible.[42] There is a disconnect between Mr Kumar's position and the indications in the franchisor's correspondence relied on by the respondent. While Mr Kumar's evidence is somewhat lacking in specifics, I accept that the effect of the franchisor's termination on Mr Kumar has not been substantially mitigated by some transfer to his wife as the franchisor's earlier correspondence suggested. I therefore accept that as a consequence of the convictions Mr Kumar has suffered significant financial loss. I also accept that Mr Kumar has also suffered mental stress although it is unclear whether that was the result of the franchise termination or his marriage breakup.[43] As Ms Hayden submitted, that loss has already occurred. But it would not have occurred but for the convictions, and the evidence indicates that it could be reversed. I therefore consider that the fact the loss has occurred is not determinative.Out of all proportion?[44] Ms Haszard submitted that the consequences outlined above are out of all proportion to the gravity of the offending. Thus, she submitted, Mr Kumar's application for discharge without conviction should be granted on appeal.[45] Ms Hayden submitted that the higher the likelihood and the more serious the consequences, the more likely it is that the proportionality test can be satisfied.18She submitted the courts have recognised that negative consequences ordinarily flow from convictions and therefore something more than those ordinary consequences will be required to satisfy this test.[46] As Ms Hayden submitted, negative consequences ordinarily flow from convictions. Depending on the nature of the offence, the ordinary consequences may include loss of employment or business contracts or opportunities. However, I do not consider that termination of the Jani-King commercial cleaning franchise and the financial loss that caused was an ordinary consequence of Mr Kumar's relatively low end offending. As already indicated, if the matter had been raised before convictions were entered, it could well have led to engagement with the franchisor before proceeding. If the franchisor was aware of the actual offending to which Mr Kumar pleaded guilty, termination may not have occurred. If the franchisor still considered termination should follow conviction, and the Judge had been informed, including as to the indications at the earlier hearings on 12 June and 13 August 2019, the Court may well have concluded that the financial consequences were out of all proportion. In the unusual circumstances of this case, that is my conclusion. Each case must be decided on its own merits, but there are cases involving relatively low end family violence such as threatening behaviour (and more serious offending) where business or employment consequences have been found to be out of all proportion resulting in discharge without conviction.1918 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [35].19 See Mathieson v R [2019] NZCA 406; and Shi v Police [2020] NZHC 59.Residual discretion under s 106[47] Ms Hayden indicated that if Mr Kumar established the s 107 gateway threshold, the respondent adopted a neutral position in relation to the application for discharge. Having concluded that the gateway threshold has been met, I consider that in the circumstances of this case, the discretion under s 106 should be exercised. Mr Kumar is to complete the remaining part of the Living Without Violence programme (or an equivalent programme available near to where he is living).Result[48] Leave to appeal out of time is granted.[49] The appeal against conviction and sentence is allowed. On each of the two charges, Mr Kumar is discharged without conviction.[50] Mr Kumar is to complete the remaining part of the Living Without Violence programme (or equivalent).________________________________ Gault J