KRISHNAN v POLICE [2021] NZHC 2061

KRISHNAN v POLICE [2021] NZHC 2061 [10 August 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000244[2021] NZHC 2061BETWEEN YUVARAJ KRISHNANAppellantAND NEW ZEALAND POLICERespondentHearing: 10 August 2021Counsel A Takalai for AppellantP Clifford for RespondentJudgment: 10 August 2021JUDGMENT OF WHATA JThis judgment was delivered by me on 10 August 2021 at 4.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Meredith Connell, Auckland[1] Mr Krishnan pleaded guilty1 to one charge of operating a vehicle carelessly2and one charge of failing to stop or ascertain injury.3 He applied to be dischargedwithout conviction in the Manukau District Court. Judge Dawson declined theapplication, and instead convicted and discharged Mr Krishnan and ordered him topay $3,500.00 in reparation. Mr Krishnan now appeals against that decision.Background[2] Mr Krishnan pleaded guilty to the following summary of facts. On the21 October 2020, Mr Krishnan was driving westbound on the North Westernmotorway. As he was exiting the motorway at the St Lukes off-ramp, he was travellingin the left of two right-turning lanes that lead onto St Lukes Road. The complainant'svehicle was ahead of Mr Krishnan's, travelling at approximately 10 kilometres perhour on the approach to the intersection. As Mr Krishnan approached thecomplainant's vehicle, he attempted to manoeuvre into the right lane, however, the leftfront corner of his vehicle struck the right rear corner of the complainant's vehicle,pushing it forward and causing moderate damage to the vehicle. Mr Krishnancontinued to drive but had to stop behind a vehicle that was stationary. Thecomplainant yelled out to Mr Krishnan to stop but he ignored that request andcontinued to drive home. The complainant did not sustain any injuries in the crash.District Court sentence[3] Judge Dawson's reasons for declining Mr Krishnan's application weresuccinct. The Judge said:4[4] I note you are 29 years of age, you have no previous convictionswhatsoever. You have indicated through your counsel you wish to apply for adischarge without conviction. The offending is of relatively low gravity, giventhat no one was injured and you are able to pay reparation. You are about tostudy for your final exams to become a medical doctor and are concerned ofthe impact a conviction might have on your career.1 Mr Krishnan entered pleas on 22 April 2021.2 Land Transport Act 1998, s 37(1). Maximum penalty fine of $3,000.00, and the court may orderthe person to be disqualified from holding or obtaining a driver licence for a period the court thinksfit.3 Land Transport Act 1998, s 35(1)(c). Maximum penalty three months' imprisonment, a fine of$4,500.00 and the court must order the person to be disqualified from holding or obtaining a driverlicence for six months or more.4 Police v Krishnan [2021] NZDC 7416 [District Court decision].[5] I am not convinced that the consequences would be particularlyonerous quite frankly. But given the lower level of gravity of the offendingand your ability to pay a relatively high amount of reparation, I am convictingand discharging you on both charges, but I am ordering you to pay $3,500reparation to the insurance company at the rate of $500 a fortnight, with thefirst payment due on 29 April 2021.Grounds of appeal[4] Mr Krishnan raises two primary grounds of appeal:(a) first, that he was deprived of an adequate opportunity to present hisapplication for discharge without conviction; and(b) second, that the Judge was wrong to refuse the application.Threshold for appeal[5] An appeal against the refusal of a Court to grant a discharge without convictionis treated as a composite appeal against both conviction and sentence.5 The test forwhether to grant a discharge without conviction is an evaluative judgment, not a matterof discretion.6 Therefore, the ordinary principles governing general appeals apply andthe appellate court must make its own assessment of an application's merits.7Mr Krishnan must show there has been a miscarriage of justice.8 In the context of adischarge without conviction, a miscarriage of justice means a "material error".9Discharge without conviction[6] On an application for discharge without conviction,10 the Judge must considerthe requirements of s 107 of the Sentencing Act 2002:(a) the gravity of the offending;5 Ovtcharenko v Police [2017] NZCA 65 at [5].6 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]; and Blythe v R [2011] NZCA 190,[2011] 2 NZLR 620 at [12]–[13].7 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.8 Criminal Procedure Act 2011, s 232(c).9 Gaunt v Police [2017] NZCA 590 at [9], citing Jackson v R [2016] NZCA 627, (2016) 28 CRNZ144 at [12].10 Sentencing Act 2002, s 106.(b) the direct and indirect consequences of a conviction; and(c) whether those consequences are out of all proportion to the gravity ofthe offending.[7] If those factors are made out, the Judge may then exercise the discretion togrant a discharge without conviction under s 106 of the Sentencing Act.11Fresh evidence[8] Ms Talakai, for Mr Krishnan, submits that he was not given the time andopportunity to prepare his application for a discharge without conviction. He believesthat he did not get a fair chance to assemble the case in support of his application.12His application for discharge without conviction was heard at the same time as pleaswere entered. In this regard, Mr Krishnan has, since the District Court sentencingdecision, filed evidence relating to the consequences of conviction for him. Theadmissibility of that evidence is not opposed. The respondent accepts that theevidence is credible and could not have been presented to the sentencing Court withreasonable diligence.[9] I agree that the evidence is admissible. I also think I should consider theapplication afresh in light of that evidence. I mean no criticism of Judge Dawson'sapproach in what would have undoubtedly been a very busy sentencing day. But thefact remains that he did not have the benefit of the evidence now before me and Iproceed on the basis that I should examine the merits of the application afresh havingregard to evidence that was not available to the Judge.Discussion[10] I consider Mr Krishnan should be discharged without conviction. In thepresent circumstances, conviction is grossly disproportionate to the offending. Theoffending sits comfortably at the very low end of the spectrum for offending of its11 R v Hughes, above n 6.12 His counsel cites criminal procedure protections contained in ss 24 and 25 of the New ZealandBill of Rights 1990.kind. It involved a momentary lapse of judgment which lead to a minor motor vehicleaccident on a notoriously busy intersection and only moderate damage was caused.Plainly, Mr Krishnan should have stopped, and the police cannot be criticised forlaying charges. But, his was not an egregious case of fleeing from the scene. In fact,Mr Krishnan had to stop nearby. Moreover, as he explains in his affidavit, the trafficwas congested, and he did not know where to pull over.[11] Mr Krishan has no prior convictions for offending of this type, he is clearlyremorseful, has since completed a defensive driving course and there is no suggestionwhatsoever he presents any ongoing risk to the public. He has paid compensation inrespect of the damage caused so the victim's (and the insurer's) harm has beenremedied. The proceedings have also undoubtedly served their deterrent purpose.[12] In terms of consequences, Mr Krishnan is employed by the Auckland DistrictHealth Board in its COVID-19 Response Unit. Naturally, that District Health Boardtakes any convictions on the record of its employees very seriously. In a letter fromJames Worthy (Clinic Manager) of it is noted:If there is a conviction on [Mr Krishnan], we cannot offer him furtheremployment in the Public Health Unit, COVID-19 Unit or the Infectious Unitand we cannot be a reference for him in his future employment as a medicalofficer. We will have to strongly consider a termination of his contract as partof the individual employment agreement as per the agreement to uphold theintegrity of a Health Professional working with the COVID-19 Unit.[13] A letter from the Medical Council of New Zealand states Mr Krishnan haspassed his medical exams and, accordingly, is eligible to apply for full registration topractice in New Zealand. The Medical Council's policy on registration in NewZealand include fitness registration requirements, as provided in the HealthPractitioners Competence Assurance Act 2003. Section 16 of that Act providesmatters prohibiting an applicant's registration, including if:(c) he or she has been convicted by any court in New Zealand orelsewhere of any offence punishable by imprisonment for a term of3 months or longer, and he or she does not satisfy the responsibleauthority that, having regard to all the circumstances, including thetime that has elapsed since the conviction, the offence does not reflectadversely on his or her fitness to practise as a health practitioner ofthat profession; ...[14] Mr Krishnan is concerned his conviction might affect his eligibility to practicemedicine in New Zealand and affect his ability to train in the United States.Mr Krishnan produces a letter from Tomasz Rogula, Professor of Surgery at CaseWestern Reserve University in Ohio. By reference to the University's policies oncriminal background vetting for its potential employees, Dr Rogula advisesMr Krishnan is a potential candidate for further training in infectious diseases researchat the University in 2022, but that "if there is a conviction of any kind, we would haveto reject any application."[15] Ms Clifford, for the Crown, submits none of the above evidence is an absolutebar on Mr Krishnan's registration as a doctor, and that the consequences of convictionare not out of all proportion to the offending. Ms Clifford also submits Mr Worthy'sletter is not an unequivocal statement that Mr Krishnan will lose his employment. Shenotes Mr Krishnan's offending must, in any event, be brought to the attention of theMedical Council and equivalent bodies in the United States, referring to a statementin the application form for registration as medical doctor in New Zealand requiringbroad disclosure of any police investigation or charge, including traffic offences andregardless of whether the proceedings resulted in a discharge without conviction.[16] Ms Clifford's points are fairly made, and it is for Mr Krishnan to show there isa real risk of the consequences outlined by him occurring. It is not clear that his futurein medicine will certainly be denied him because of the conviction. Nevertheless, onthe evidence before me, the black mark of conviction remains significant because thereis a real risk of Mr Krishnan losing his present employment or will not be offeredfurther employment, and that future training opportunities overseas will not beavailable to him. That would be an utterly disproportionate outcome given the minoroffending in this case and complete absence of ongoing risk presented by Mr Krishnanto the public. To my mind, this is clearly a case where s 106 of the Sentencing Act isproperly engaged and Mr Krishnan should be discharged without conviction.Result[17] Leave to adduce further evidence is granted.[18] The appeal is allowed. Mr Krishnan is discharged without conviction.